Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

I rise to speak in support of the amendments to the Anti-Discrimination and Human Rights Legislation (Respect at Work) Bill 2022, circulated by the member for Wentworth. While there is much to commend, the scope of the 'Respect at Work' bill does not extend the same protections to everyone who is protected under the Sex Discrimination Act 1984 and that's why I support this amendment—because everyone deserves to be treated with dignity and respect at work.

The attribute of sex only is too narrow. In its submission to the Senate inquiry, Equality Australia argued that the new protections regarding hostile work environments and the positive duty to eliminate discrimination should apply to all protected attributes under the Sex Discrimination Act, including sexual orientation, gender identity and intersex status. This would ensure consistency and coherence in federal discrimination law, and ensure that all protections in the Sex Discrimination Act apply equally to people regardless of their gender, sexual orientation or sex characteristics. As the Prime Minister said in this chamber today, statistics show that LGBTIQA+ people experience high rates of discrimination, including harassment and sexual harassment. In the largest study of its kind, Private Lives 3 documented the experiences of almost 7,000 LGBTIQ+ plus people living in Australia. Around one in four said they had experienced harassment in the past 12 months because of their sexual orientation or gender identity. Young transgender people are one of the most vulnerable groups in our society, experiencing discrimination, bullying, harassment, often a lack of family acceptance, and barriers to medical care.

Life can be challenging enough for these groups. It should not be that way in the workplace too. No-one should feel unsafe or uncomfortable in their place of work, and this reform, therefore, shouldn't stop with the Sex Discrimination Act. There's also a place for a positive duty to eliminate discrimination in all federal discrimination laws: the Racial Discrimination Act 1975, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004. I urge the government to make a comprehension review of its federal discrimination laws as a matter of priority, and I commend this amendment to the House.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Wentworth be disagreed to.

Monique Ryan (Kooyong, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Schedule 5, item 3, page 26 (line 12) to page 27 (line 13), omit section 46PSA, substitute:

46PSA Costs

(1) In proceedings under this Division against a respondent to a terminated complaint, an applicant in the proceedings may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (3).

(2) The court may not make an award of costs against an applicant who conducts the proceedings in a reasonable manner, in respect of any costs which relate to:

(a) the complaint; or

(b) any appeal in respect of the complaint.

(3) The applicant may be ordered to pay:

(a) all, or part of, the costs referred to in subsection (2) if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or

(b) so much of another party's costs that the court is satisfied were incurred as a result of conduct by the applicant in the course of the proceedings which the court determines to be unreasonable.

(2) Schedule 5, item 6, page 27 (lines 24 and 25), omit "if the Court considers that there are circumstances that justify it in doing so", substitute "in certain circumstances".

(3) Schedule 5, item 9, page 28 (lines 8 and 9), omit "if the Court considers that there are circumstances that justify it in doing so", substitute "in certain circumstances".

I'm grateful for the opportunity to submit these proposed amendments to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The landmark Jenkins report found that workplace sexual harassment is prevalent and pervasive. It occurs in every industry, in every location and at every level in Australian workplaces. This bill is an important and historic landmark on our path to a fairer, more equitable and safer workplace for all Australians.

I applaud the Albanese government for committing to preventing and addressing the consequences of workplace sexual harassment and other forms of discrimination. I also welcome the Attorney-General's comments this morning—that this is just the beginning of a conversation on these matters—and I agree with him that reasonable minds may well differ on their execution. I remain of the belief, however, that the issue of costs provision, as managed in this bill, is problematic, and it's this which is addressed by the proposed amendments.

Recommendation 25 of the Respect@Work report clearly articulates the need to ensure that fear of adverse costs orders does not create a barrier to victims-survivors of workplace sexual harassment seeking access to justice. In passing this important legislation, we have to make it easier for victims of workplace sexual harassment to speak out and to receive justice. We must ensure that employers understand their responsibility to protect their workplace and their workforce, and the ramifications of not doing so. The risk of adverse costs orders is clearly a disincentive to applicants considering pursuing sexual harassment matters in the Federal Court.

The Respect@Work report proposed that costs might be ordered against the applicant only where the court was satisfied that the party instituted the proceedings vexatiously or without cause. That model has not been adopted in this bill. Instead, this bill proposes a cost-neutrality approach in which litigants bear their own costs unless the court orders otherwise. The bill does set out various factors that the court must have regard to in making costs orders. Superficially, the cost-neutral arrangement represents an improvement on the status quo. In effect, however, its design and the uncertainty around its operation will serve to undermine access to justice by limiting the ability of applicants to secure legal representation. Taking a cost-neutrality approach to a relationship characterised by systemic inequality only serves to entrench that inequality.

The amendment I have proposed offers an alternative: an equal-access approach. Under this proposal, each party will bear its own costs, except when the applicant is unsuccessful—that is, when the court has found that the respondent has engaged in discriminatory conduct, in which case the respondent will be liable to pay the applicant's costs, as they should. You should not be excused from bearing costs when you have broken the law. People and organisations found to have engaged in discrimination or harassment in breach of the law should have to pay the legal costs of the applicant. This will act as an incentive to change workplace cultures that permit discriminatory treatment. This should apply not only to sex discrimination cases but also to cases or instances of discrimination on the basis of race, age or physical capacity.

As the government knows, an equal-access model has already been adopted domestically for whistleblowers. In introducing this change to the usual costs rule, the parliament recognised that, at that time:

Legal costs can be prohibitive to any person seeking compensation for damage, and the risk of being ordered to pay the costs of other parties to the proceedings may deter whistleblowers and other victims of victimisation from bringing the matter to court.

This reform will increase access to justice. People who've experienced harassment and discrimination will be able to take their cases to court, and discriminatory behaviour will be appropriately penalised. There will be a flow-on impact to workplace culture. Each of the seven recommendations being implemented through this bill is important and long overdue. Combined, they will fundamentally change how acceptance and respect are perceived in our workplace. But I urge the government to accept this proposed amendment to improve the path to representation in the Federal Court.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Just briefly, the Greens support this amendment to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I thank the member for Kooyong for moving it. The Greens first raised this issue in the report of the Senate inquiry into this bill. The cost provision is important because this bill now gives people a number of very important rights—rights that we support—and we welcome the passage of this bill. But to have those rights, including the right to be in a workplace free from discrimination and harassment, you must be able to enforce them.

Now, the barriers in the way of people enforcing the rights that they have under this bill will often be financial. There are two things that need to be done to remove that barrier. One is to say that you are not going to be exposed to having to pay your employer's costs if you bring a case in good faith and you lose. But the second, in those instances where you bring a case and you're successful, is to have the capacity to have some of the costs recovered. What is very, very clear from the evidence that was submitted to the Senate inquiry during the course of this bill is that in many instances it is only the capacity for someone to recover some of those costs and not to have to bear them out of their own pocket—it's their own costs I'm talking about—that means that people can seek justice and can seek that the law be enforced.

The provision that is being put forward is one that says: if you come and bring an action, you will know that, unless you're acting in bad faith or vexatiously, you are not going to be out of pocket and that if you succeed because you've demonstrated that the employer has broken the law—perhaps by providing an unsafe workplace or perhaps by allowing discrimination to happen against you—then you're going to get your costs, or at least a substantial part of them, met. The organisations who have come and given evidence and have signed the open letter today have all made the point very, very clearly that this will often be the only way we will be able to enforce the law.

I listened carefully to the Attorney-General's contribution during the summing up debate and I was pleased to hear—if I understood it correctly—that this is something that the government will be giving further consideration to. Because this is an important bill, and one that we welcome, and as the Greens flagged in our Senate report, this must be resolved, moved to amend, in the Senate when the bill comes before the Senate—the rights that are granted to people to be in a workplace free from sexual harassment and discrimination have to be rights that can be enforced. This cost provision is modelled on whistleblower legislation, where similar provisions apply. In many instances it's going to be women who are blowing the whistle on sexual harassment in their workplace, and they have the right not only to be protected from adverse cost orders but to know that if it's demonstrated that the employer has done the wrong thing then their costs are going to be met, all or in part.

I thank the Attorney-General for saying during the summing up debate that this is something which is going to be considered as this bill works its way through the Senate. A change to this provision, whether it's along the lines of that proposed by the member for Kooyong or along the lines of what the Greens have proposed in the Senate or along other lines, will actually expand access to justice and ensure that the new rights that are gratefully received in this bill will be able to be enforced.

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

As I have said in the summing up on the bill, addressing this question of cost: the cost model in this bill does seek to strike a balance when it comes to discrimination matters generally, not merely sexual harassment matters. I'm pleased that the member for Kooyong is prepared to agree that reasonable minds may differ on whether or not the bill strikes the appropriate balance for costs for all discrimination matters.

It is really important to note that the model in the bill, which follows the recommendations of the Respect@Work report, includes a discretion for courts to award costs in the interests of justice. Without wishing to predict the development of jurisprudence in this area, I think that the interests of justice in a particular case, when considered by a court in a sexual harassment matter in an employment context—where, as the member for Kooyong said, it is very likely that in most cases there will be a vast asymmetry of power and economic advantage—and in circumstances where we have a bill which is going to create legislation that directs the 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 some other relevant considerations, are where we are likely to see cost orders. I do think that's a very key point.

As honourable members have noted in speaking on this amendment, I have said that this is just the start, in the earliest months of this government, a new government, of a conversation about human rights and antidiscrimination in this country. It's a conversation I look forward to continuing to have with all members of this parliament and, indeed, with the whole Australian community. But at this time the government will not be supporting this amendment.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be disagreed to.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

There are two components to the amendment that I have circulated. It's a simple amendment to the drafting of the objects of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. What's important in the first part of this amendment is that it's consistent with recommendation 16a of the Respect@Work report. This amendment omits the 'so far as practicable' from the objects. This is necessary because the current wording introduces a lower standard than is proposed in recommendation 16 of the Respect@Work report. It's inconsistent with several other objects contained in section 3 of the Sex Discrimination Act, which sets a higher standard. It may give rise to the implication that rights codified in the Convention on the Elimination of all Forms of Discrimination Against Women will only be protected domestically to the extent that it is practicable to do so.

In relation to the second part of the amendment, it is about changing the language used. The objects as drafted by the government in the bill refer to men and women specifically. We need to start moving to gender neutral language. Legislation in this place needs to start embracing the future and younger generations, who are not defined by gender language. In line with the Commonwealth Latimer House principles, gender neutral language should be used in the drafting and use of legislation.

I've heard the Attorney-General say in this place, 'This is changes for later,' and, 'We're just going to stick to exactly the wording of the Respect@Work report.' But the reality is it is incumbent on all of us, in this place, to think about the population that we are going to bind by this legislation. We need to make sure people identify, see themselves, in this legislation, and by restraining the wording, even just in the objects of the act, you are saying that you are limiting it to just those two categorisations.

The reality, in this day and age, in 2022, is that this does not represent everyone. Many people in our communities do not identify in that way. So by limiting the language that way you are limiting the effect of this legislation, which is good. It is very good that we're implementing Respect@Work, that we're making sure sexual harassment and discrimination is limited. But gender neutral language is a way of showing, especially to young people, that everyone in this place is future focused, recognises that times are changing, and it is important that legislation does so as well. It should reflect and respond to community expectations.

We know that gender neutral language is important and there's a strong case for it. The Australian Human Rights Commission national survey found that several harms that the Respect@Work report are seeking to address are incredibly acute for people who identify as LGBTQIA+. In fact, some one in four out of 7,000 interviewed reported harassment in their workplace. If the goal of this legislation is to limit this, the language in the legislation should be inclusive not exclusive. That is what this amendment simply seeks to do.

This is aligned with the recommendations and submission of the Law Council of Australia, and it's consistent with the conclusion of the final report of the inquiry into this bill. The report on the inquiry into this bill concluded that, with respect to the objects clause, the committee notes that there are different and strongly held views that the construction of paragraph 3(e) of the Sex Discrimination Act. The committee acknowledges the importance of gender inclusive language throughout Australia's antidiscrimination law and urges the Australian government to give more thought to the matter.

I'd urge the Attorney-General and the government to consider changing the language of the objects and consider this amendment. It is a simple amendment. This is not opening up a floodgate or changing anything drastic from where the Respect@Work recommendations go, but it is a strong signal to young people, to people of LGBTQI or people that are non-binary, that don't identify with man or woman, that they are also meant to be protected and included in this legislation.

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

I acknowledge the remarks of the member for Warringah but I need to say that the government is focused on ensuring alignment with the recommendations in the Respect@Work report and the existing structure of the Sex Discrimination Act. That was our election commitment.

The drafting of the bill provisions is consistent with recommendation 16(a) in that it applies to substantive equality as between men and women. I can also say that the Sex Discrimination Act already contains an objects clause related to the elimination of discrimination on the other grounds of discrimination covered by the act. The member for Warringah's amendment is not consistent with the Respect@Work recommendation and the government does not support it.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the honourable member for Warringah be disagreed to.

Dai Le (Fowler, Independent) Share this | Link to this | Hansard source

I move:

(1) Schedule 2, item 16, page 11 (after line 4), at the end of Division 4A, add:

35AA Performance of functions relating to positive duty in relation to sex discrimination

In performing its functions under section 35A, the Commission must have regard to:

(a) the need for guidelines and other materials to be available in multiple languages; and

(b) the cultural diversity of Australian workplaces.

I commend the government for keeping to their promise to implement all the Sex Discrimination Commissioner's recommendations for making workplaces safe for all employees, regardless of sex. None of us should face discrimination for any reason at any time, but more so in our workplace, be it in big corporations, small business or government agencies. Creating a safe and respectful workplace is key to a productive and inclusive workforce. If people feel safe, respected and heard, they can perform to the best of their abilities.

That said, if employers can't easily fulfil the obligations that the proposed positive duty imposes, then an undue administrative red tape is imposed, particularly on small businesses with culturally and linguistically diverse owners and employees. Employers are already subject to significant obligations to prevent sexual harassment in the workplace. The opposition mentioned section 106 of the Sex Discrimination Act which makes employers liable for the actions of their employee or agent.

I would now ask the House to specifically consider the challenges that culturally and linguistically diverse Australians face on either side of this issue. The report noted that, while sex discrimination was increasing, reporting was not. The explanation given for this was a lack of faith in the reporting system. I would argue that those who speak English as a second language also face difficulties in reporting this issue effectively. It is undoubtedly a daunting task for these groups of people in our workforce to share their stories. For this reason, greater clarity is required.

In a Senate committee submission Diversity Council Australia raised some important points around intersectionality. Employees from culturally diverse backgrounds not only face increased prevalence of sexual harassment, but there is a compounding effect where there is also unconscious cultural biases at play. It is pervasive in some corporate structures, which I discovered in my previous life as an advocate for cultural diversity and leadership. We need to ensure that those from non-English-speaking backgrounds have the necessary resources and understanding of these new guidelines if you want them to engage with it and feel confident to pursue action despite cultural and linguistic barriers.

While it's important that government policy tries to create a widespread culture of respect, it is evident that some businesses have a greater capacity to comply than others. For example, large corporations have access to HR teams capable of putting together and ensuring compliance with a company-wide policy. This, however, is a large burden to place on a small business where the task may be left with one individual who also doubles as the accountant, the shift manager and other roles.

Small businesses, who are the backbone of our economy, are known to be a diverse sector, where two-thirds of small businesses come from a migrant background. Therefore the guidance materials from relevant bodies must be thorough and meet the needs of a wide cross-section of businesses who wish to ensure a safer workplace. While some businesses will have to be vigilant regarding internal issues, others, especially those in industries where employees are customer-facing, will have to create policy to reasonably diminish the chance of discrimination from customers.

I call on the government to ensure that they have given enough support to businesses to comply with this new legislation—in particular, small businesses run by culturally and linguistically diverse individuals in a variety of industries. In saying this, a worrying part of the legal process can be found in schedule 4, which makes it easier for unions and other representative groups to bring a grief claim to the Federal Court. I urge the government to reconsider this schedule as it allows large representative groups to initiate legal actions in their interests, rather than being solely about the protection of employees. We want to ensure those from non-English-speaking backgrounds have the support they need but won't be taken advantage of by other bodies with other vested interests. Litigants should be taken by the applicant with the support of the unions or representative bodies, not the other way around.

In summary, it isn't that my complaints line up with the aims of this bill, but rather with the lack of consideration for culturally diverse workplaces and their employees. I call on the government to ensure our culturally and linguistically diverse populations can access the reporting mechanisms as employees, and support small businesses through compliance hurdles. In its current form, these opaque guidelines are sparking debate amongst a group of individuals who largely speak English and have access to briefings and staff to help them understand the regulations. It's excluding those who lack these resources and who don't speak English as their first language, and unfairly expects them to reasonably comply.

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

Section 35A of the bill sets out the education, research, public engagement and compliance functions of the Australian Human Rights Commission in relation to the positive duty.

The amendment proposed by the member for Fowler would impose two requirements on the commission with respect to how it is to perform these functions. These include having regard to providing its guidance material on the positive duty in multiple languages and to the cultural diversity of Australian workplaces. The amendment is consistent with the existing approach of the commission when undertaking its education, research and public engagement functions.

The commission does publish its materials in multiple languages and engages with a diverse range of businesses, individuals and the community as a whole. In addition, the commission already has regard to the diversity of Australian workplaces when exercising its existing functions. The commission adopts an intersectional approach when exercising its functions, and I very much expect that the commission will continue to do so in relation to the positive duty. The government supports this amendment.

Question agreed to.

Bill, as amended, agreed to.