Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

by leave—I move amendments (1), (2), (3) and (5), as circulated in my name, together:

(1) Schedule 1, item 5, page 4 (line 9), after "conduct", insert "in relation to the second person".

(2) Schedule 1, item 5, page 4 (lines 11 and 12), omit "or after".

(3) Schedule 2, item 8, page 7 (line 7), omit "possible", substitute "reasonably practicable".

(5) Schedule 2, item 8, page 7 (line 16), omit "possible", substitute "reasonably practicable".

I circulated some amendments during my second reading speech and outlined the coalition's reasons for supporting those amendments. Today I wish to move the amendments in four groups, and I'll speak briefly to the first group. The principle we're adopting with all of our amendments is to make it easier for businesses to comply with and achieve the intention behind this bill. We're not seeking to see boxes ticked, we're not seeking to burden workplaces unnecessarily, but we are seeking to ensure that workplaces are safe place for all Australians. If employers can't easily fulfil the obligation this legislation places on them and an undue additional regulatory burden is imposed, we will create more problems than we solve. We must take a path that's achievable and will lead to tangible change.

The bill proposes to insert section 28M into the Sex Discrimination Act, which would make it unlawful for a person to subject another person to a workplace environment that's hostile on the grounds of sex. This concept already exists in the antidiscrimination law, although the provision is drafted broadly. We propose an amendment to align the provision with existing case law. The issue with the way the provision is drafted is that there isn't a requirement for the first person or the second person to actually be in the workplace at the same time, or for there to be a temporal connection between the conduct and the harm. For instance, there are businesses that operate on many different sites in different units. It's important that the complaint be related to the activity that goes on at the site or the unit in which a person works. It's also important that the conduct occurs at the relevant time that the person who's bringing the complaint worked in the business.

In relation to the temporal connection, the Australian Chamber of Commerce and Industry pointed out in their submission to the committee as follows:

… from a practical perspective, there are unique circumstances in which an extended lapsed period of time could unfairly punish employers, even where they have taken action to address workplace hostility. For example, consider a scenario in which there exists a cultural problem of sexism at a workplace. If an employer takes action to rectify the situation and ensures that the workplace is no longer "offensive, intimidating or humiliating" to prospective female employees, but a female employee is employed at the workplace at a later date, hears about the prior conduct and is subsequently intimidated, it is likely that proposed section 28M is enlivened. Intimidating conduct has been engaged in and an intimidated person has been in the workplace after the conduct occurred, although the two events were not contemporaneous and there is otherwise no connection between the events and the person.

That means that where a business previously had a bad culture of sexist behaviour and the employee fixed their culture, but an employee was not there at the time but heard about bad culture and was intimated by it, under the legislation as currently drafted they could bring an action. That does not seem to be the intent of the legislation, and it therefore should be clarified. Our amendment would amend section 28M to insert 'in relation to' and delete 'after the conduct occurs' to bring the provision into line with existing case law.

The bill proposes to insert section 47C into the Sex Discrimination Act to establish a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination on the basis of sex, including sexual harassment, within a workplace. Again, let me draw on the submission of the Australian Chamber of Commerce and Industry. They say:

… section 47C would require employers and PCBUs to take measures to eliminate "as far as possible" certain conduct. Under work health and safety law, the obligation imposed on PCBUs is to ensure the health and safety of their workers "as far as is reasonably practicable". The widespread use of "reasonably practicable" under work health and safety law has provided PCBUs with a substantial degree of understanding about the meaning of that threshold. There is also extensive case law about the meaning of these words which offers further clarity.

They quote in their submission the High Court case of Slivak and Lurgi and the test applied by Justice Gaudron of what 'reasonably practicable' means. They say:

The new phrase "as far as possible" does not share such clarity.

Like ACCI, we believe that 'as far as reasonably practicable' is the preferable test. Our proposed amendment to section 47C is to insert 'as far as reasonably practicable' and to delete 'as far as possible'. That will more closely align the positive duty created in this bill with the existing obligations on employers under the work health and safety model law. This is essential, as we want to achieve the objects of the bill without creating unnecessary additional burdens on businesses, particularly small businesses.

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

The question is that amendments (1), (2), (3) and (5) moved by the member for Berowra be disagreed to.

Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

by leave—I move:

(4) Schedule 2, item 8, page 7 (lines 9 to 11), omit ", including inquiring into compliance, giving compliance notices and accepting undertakings".

(5) Schedule 2, item 8, page 7 (line 16), omit "possible", substitute "reasonably practicable".

(6) Schedule 2, items 17 to 25, page 11 (line 7) to page 18 (line 4), omit the items.

(7) Schedule 2, Part 2, page 18 (after line 30), at the end of the Part, add:

Sex Discrimination Act 1984

31 Subsection 4 (1)

Insert:

compliance notice means a notice mentioned in subsection 49E(1).

positive duty in relation to sex discrimination means section 47C.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

32 After Part III

Insert:

Part IIIA — Functions of Fair Work Ombudsman relating to positive duty in relation to sex discrimination

49 Functions of the Fair Work Ombudsman relating to positive duty in relation to sex discrimination

(1) The following functions are conferred on the Fair Work Ombudsman:

(a) to inquire into a person's compliance with the positive duty in relation to sex discrimination;

(b) to ensure compliance with the positive duty in relation to sex discrimination.

Note: The positive duty in relation to sex discrimination is section 47C.

(2) Notwithstanding subsection (1), the functions of the Fair Work Ombudsman do not include inquiring into an intelligence agency's compliance with the positive duty in relation to sex discrimination.

(3) If the Fair Work Ombudsman reasonably suspects that an intelligence agency is not complying with the positive duty in relation to sex discrimination, the Fair Work Ombudsman must refer the matter to the Inspector General of Intelligence and Security.

(4) A reference in subsection (3) to an intelligence agency is a reference to the following:

(a) the Australian Secret Intelligence Service;

(b) the Australian Security Intelligence Organisation;

(c) the Office of National Intelligence;

(d) the Australian Signals Directorate;

(e) that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department);

(f) that part of the Defence Department known as the Defence Intelligence Organisation.

49A Performance of inquiry function relating to positive duty in relation to sex discrimination

(1) The Fair Work Ombudsman may inquire into a person's compliance with the positive duty in relation to sex discrimination if the Fair Work Ombudsman reasonably suspects that the person is not complying.

(2) The Fair Work Ombudsman must act fairly in the performance of the function referred to in paragraph 49(1)(a).

(3) Subsection (2) does not impose a duty on the Fair Work Ombudsman that is enforceable in court.

(4) Subsection (3) does not affect a legally enforceable obligation to observe the rules of natural justice.

49B Fair Work Ombudsman to notify person and give opportunity for making of submissions

(1) As soon as practicable after commencing an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman must give the person a written notice stating the grounds on which the Fair Work Ombudsman commenced the inquiry.

(2) The Fair Work Ombudsman must not find that a person is not complying with the positive duty in relation to sex discrimination unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:

(a) to appear before the Fair Work Ombudsman, whether in person or by a representative, and make oral submissions in relation to the person's compliance;

(b) to make written submissions to the Fair Work Ombudsman in relation to the person's compliance.

49C Application of certain provisions of Fair Work Act

Sections 708 to 714A and 718 to 718A of the Fair Work Act 2009 apply in relation to the functions of the Fair Work Ombudsman set out in section 49 of this Act, and in relation to the performance of those functions, as if an inquiry under this Part were an investigation into a suspected contravention of the Fair Work Act 2009.

49D Notification of findings and recommendations

If, as a result of an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman finds that the person is not complying, the Fair Work Ombudsman:

(a) must notify the person in writing of its finding and the reasons for the finding; and

(b) may notify the person of any recommendations by the Fair Work Ombudsman for preventing a repetition or continuation of the failure to comply.

49E Giving of compliance notice

(1) If, as a result of an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman finds that the person is not complying, the Fair Work Ombudsman may give the person a written notice.

(2) The notice must:

(a) set out the name of the person to whom the notice is given; and

(b) set out brief details of the failure to comply; and

(c) specify action that the person must take, or refrain from taking, in order to address the failure; and

(d) specify a reasonable period (starting at least 21 days after the day the notice is given) within which the person must take, or refrain from taking, the specified action; and

(e) if the Fair Work Ombudsman considers it appropriate—specify a reasonable period within which the person must provide the Fair Work Ombudsman with evidence that the person has taken, or refrained from taking, the specified action; and

(f) set out any other matters prescribed by the regulations for the purposes of this paragraph.

(3) However, if the Fair Work Ombudsman has accepted an undertaking from a person under Part 6 of the Regulatory Powers Act in relation to the positive duty in relation to sex discrimination, a notice must not be given to the person under subsection (1) unless the undertaking is withdrawn, cancelled or expired.

49F Reconsideration of compliance notice

Fair Work Ombudsman must reconsider compliance notice if requested

(1) A person to whom a compliance notice is given may request the Fair Work Ombudsman to reconsider the compliance notice.

(2) The request must:

(a) be made in writing; and

(b) set out the reasons for the request; and

(c) be given to the Fair Work Ombudsman within 21 days after the day the compliance notice is given to the person.

(3) If requested, the Fair Work Ombudsman must reconsider the compliance notice.

Fair Work Ombudsman may reconsider compliance notice on own initiative

(4) The Fair Work Ombudsman may reconsider a compliance notice given to a person without receiving a request if satisfied there is sufficient reason to do so.

Reconsideration

(5) The Fair Work Ombudsman must act expeditiously in reconsidering a compliance notice.

(6) After reconsidering a compliance notice, the Fair Work Ombudsman must:

(a) affirm the compliance notice; or

(b) vary the compliance notice; or

(c) revoke the compliance notice.

(7) The Fair Work Ombudsman must give written notice of a decision under subsection (6) to the person to whom the compliance notice was given, setting out the reasons for the decision.

Decisions by delegates

(8) If the Fair Work Ombudsman's functions under this section are performed by a delegate, the delegate who reconsiders a compliance notice:

(a) must not have been involved in giving the compliance notice; and

(b) must hold a position, or perform duties, of at least the same level as the person who gave the compliance notice.

49G Review of complian ce notice

(1) A person who has been given a compliance notice may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:

(a) the person has not failed to comply as set out in the notice;

(b) the notice does not comply with subsection 49E(2) or (3).

(2) At any time after the application has been made, the court concerned may stay the operation of the notice on the terms and conditions that the court considers appropriate.

(3) The court concerned may confirm, vary or cancel the notice after reviewing it.

49H Enforcement of compliance notice

(1) The Fair Work Ombudsman may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order under subsection (2) if:

(a) a person has been given a compliance notice; and

(b) the notice has not been revoked or cancelled; and

(c) the notice is not being reconsidered under section 49F or reviewed under section 49G; and

(d) the Fair Work Ombudsman considers that the person has not complied with the notice.

(2) If the court concerned is satisfied that the person has not complied with the notice, the court may make any or all of the following orders:

(a) an order directing the person to comply with the notice;

(b) any other order that the court considers appropriate.

49J Enforceable undertakings

Enforceable provision

(1) Section 47C of this Act is enforceable under Part 6 of the Regulatory Powers Act.

Note 1: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Note 2: Section 47C of this Act is the positive duty in relation to sex discrimination.

Authorised persons

(2) For the purposes of Part 6 of the Regulatory Powers Act, the Fair Work Ombudsman is an authorised person in relation to section 47C of this Act.

Relevant court

(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to section 47C of this Act:

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2).

Enforceable undertaking may be published on the Fair Work Ombudsman's website

(4) The Fair Work Ombudsman may publish on the Ombudsman's website an undertaking given in relation to section 47C of this Act.

Extension to external Territories

(5) Part 6 of the Regulatory Powers Act, as that Part applies in relation to section 47C of this Act, extends to every external Territory.

49K Delegation by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, in writing, delegate all or any of the Fair Work Ombudsman's functions or powers under this Part (including the Fair Work Ombudsman's powers and functions under Part 6 of the Regulatory Powers Act in relation to section 47C of this Act) to a member of the staff of the Office of the Fair Work Ombudsman who is:

(a) an SES employee; or

(b) an acting SES employee; or

(c) classified as Executive Level 2 or equivalent; or

(d) acting in a position usually occupied by a member of the staff of the Office of the Fair Work Ombudsman who is so classified.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.

49L Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia (Division 2)

The Federal Court and the Federal Circuit Court of Australia (Division 2) have concurrent jurisdiction with respect to civil matters arising under this Part.

(8) Schedule 3, page 19 (line 1) to page 21 (line 22), omit the Schedule, substitute:

Schedule 3 — Inquiries into systemic unlawful dis crimination

Australian Human Rights Commission Act 1986

1 Subsection 3(1)

Insert:

systemic unlawful discrimination: see subsection 46PYA(4).

2 After Part IIC

Insert:

Part IID — Systemic discrimination

46PYA Functions of Fair Work Ombudsman relating to system ic discrimination

(1) The following functions are conferred on the Fair Work Ombudsman:

(a) to inquire into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination;

(b) to do anything incidental or conducive to the performance of any of the preceding functions.

(2) Notwithstanding subsection (1), the functions of the Fair Work Ombudsman do not include inquiring into a matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination of an intelligence agency.

(3) A reference in subsection (2) to an intelligence agency is a reference to the following:

(a) the Australian Secret Intelligence Service;

(b) the Australian Security Intelligence Organisation;

(c) the Office of National Intelligence;

(d) the Australian Signals Directorate;

(e) that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department);

(f) that part of the Defence Department known as the Defence Intelligence Organisation.

(4) In this Act:

systemic unlawful discrimination means unlawful discrimination that:

(a) affects a class or group of persons; and

(b) is continuous, repetitive or forms a pattern.

46PYB Performance of functions relating to systemic discrimination

The Fair Work Ombudsman may perform the functions referred to in paragraph 46PYA(1)(a) when:

(a) the Fair Work Ombudsman is requested to do so by the Minister; or

(b) it appears to the Fair Work Ombudsman to be desirable to do so.

46PYC Application of certain provisions of the Fair Work Act

Sections 708 to 714A and 718 to 718A of the Fair Work Act 2009 apply in relation to the functions of the Fair Work Ombudsman set out in section 46PYA of this Act, and in relation to the performance of those functions, as if an inquiry under this Part were an investigation into a suspected contravention of the Fair Work Act 2009.

46PYD Fair Work Ombudsman to give opportunity for making of submissions

In an inquiry into a matter under this Part, the Fair Work Ombudsman must not make an adverse finding about a person unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:

(a) to appear before the Fair Work Ombudsman, whether in person or by a representative, and make oral submissions in relation to the matter;

(b) to make written submissions to the Fair Work Ombudsman in relation to the matter.

46PYE Reports

(1) If the Fair Work Ombudsman has undertaken an inquiry into a matter under this Part, the Fair Work Ombudsman may do either or both of the following:

(a) report to the Minister in relation to the inquiry;

(b) publish a report in relation to the inquiry.

(2) The Fair Work Ombudsman may include in its report any recommendations by the Fair Work Ombudsman for addressing the matter.

46PYF Reports to be tabled in Parliament

The Minister must cause a copy of every report furnished to the Minister by the Fair Work Ombudsman under section 46PYE(1) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

46PYG Delegation by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, in writing, delegate all or any of the Fair Work Ombudsman's functions or powers under this Part to a member of the staff of the Office of the Fair Work Ombudsman who is:

(a) an SES employee; or

(b) an acting SES employee; or

(c) classified as Executive Level 2 or equivalent; or

(d) acting in a position usually occupied by a member of the staff of the Office of the Fair Work Ombudsman who is so classified.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.

These amendments deal with the transfer of the functions in relation to enforcement and inquiries that have been given to the Human Rights Commission under this bill to the Fair Work Ombudsman. Our area of concern regarding this bill is that it seeks to expand significantly the role of the Human Rights Commission. Let me be very clear: we have very great respect for Sex Discrimination Commissioner Kate Jenkins and the great work she has done this space. Our concern, again, is about the duplication of processes and that workplaces could find themselves being subjected to multiple inquiries through multiple bodies simultaneously. With the Human Rights Commission having enforcement functions in relation to the positive duty, the same matters could be brought to the work health and safety regulator and the Human Rights Commission at the same time.

We're also concerned that the Human Rights Commission's conciliation role would be compromised if it is required to conduct enforcement action in relation to the positive duty, as well as to provide conciliation for the employee bringing forth the complaint. Serving both functions in relation to the same complaint would not be good practice. In order to avoid duplication of the enforcement powers in relation to the positive duty, and in order to protect the conciliation role of the commission and to prevent the duplication of inquiry powers, which could see businesses or sectors subject to inquiry by multiple government agencies at the same time, our amendment says that the Fair Work Ombudsman should hold enforcement powers in relation to the positive duty and the powers of inquiry in relation to systemic unlawful discrimination.

Let me explain why this is consistent with the roles that the Fair Work Ombudsman already has. There are powers and functions allowing the existing powers and functions of the Fair Work Ombudsman. The functions of the Fair Work Ombudsman are provided for in section 68(2) of the Fair Work Act and include monitoring and compliance with the Fair Work Act and Fair Work instruments; investigating conduct contrary to the Fair Work Act and Fair Work instruments; and any other functions conferred on the ombudsman by any other legislation. The Fair Work Ombudsman can undertake workplace investigations in relation to adverse action and it can conduct investigations. Where an investigation finds that the employer has or has had discriminatory practices that are linked to adverse actions for employees or prospective employees, it can take appropriate enforcement actions. Enforcement actions can include issuing compliance notices, enforceable undertakings or commencing proceedings in court before the Fair Work Commission. This extends to instituting proceedings for breach of civil remedy provisions, including those that prohibit adverse action, coercion or undue influence in relation to workplace rights; adverse action or coercion in relation to industrial activities; and those which prohibit contraventions of the National Employment Standards, a modern award enterprise agreement or national minimum wage orders.

In relation to adverse action, this includes workplace discrimination on the basis of various protected attributes, including sex, sexual orientation or marital status. The Fair Work Ombudsman notes that bullying and harassment, including sexual harassment, can in some circumstances amount to unlawful discrimination and then falls within its powers. So we can see the link between the role that the Fair Work Ombudsman already provides and the sense of having these matters dealt with by the Fair Work Ombudsman.

On the Fair Work Ombudsman's broader powers in relation to industries: it can conduct inquiries to monitor compliance within an industry regional supply chain, even where there's no specific allegation of noncompliance with workplace laws, in response to trends in data that indicate systemic noncompliance in particular businesses or industries as is posited in this legislation.

In conclusion, these amendments seek to replicate exactly the same powers that this bill gives to the Australian Human Rights Commission in relation to enforcement and systemic inquiries, and gives those powers to the experienced Fair Work Ombudsman.

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

The government opposes these amendments, which are shifty amendments in exactly the same spirit that those opposite brought forward not a full implementation of the Respect@Workreport but rather a partial implementation of the Respect@Work report, and then had the gall to oppose amendments that we moved to the government's bill last year that would have implemented the Respect@Work report in full.

We are implementing the Respect@Work report in full, and these amendments, like the previous set of amendments, and like the next lot of amendments that the shadow Attorney-General is bringing forward, are designed to undermine and oppose the intent of the Respect@Work report.

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

The question is that opposition amendments (4), (6), (7) and (8) be disagreed to.

Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

by leave—I move amendments (9) and (10), as circulated in my name, together:

(9) Schedule 4, page 22 (line 1) to page 25 (line 12), omit the Schedule.

(10) Schedule 5, page 26 (line 1) to page 28 (line 28), omit the Schedule.

These amendments deal with representative actions and costs orders. Schedule 4 of the bill seeks to amend the Human Rights Commission Act to make it easier for unions and other representative groups to bring representative claims in the Federal Court. The amendments would allow bodies to commence legal proceedings on behalf of other parties rather than the aggrieved person taking the matter for themselves. The Australian Chamber of Commerce and Industry has explained why this provision is not necessary. The ACCI has argued that representative groups are not prohibited from providing financial or legal support to parties pursuing a representative proceeding in the courts. Rather, they're simply prevented from commencing the proceedings on their behalf. It's not clear how allowing trade unions to commence legal proceedings on behalf of aggrieved persons would lead to better outcomes for these persons, especially in light of support that representative groups can already provide.

Fundamentally, litigants in representative actions need to be aggrieved persons, not bodies that represent or merely purport to represent their interest. This is how the existing avenue for class actions rightly operates. The interests of representative bodies do not always align with those they represent. Allowing these bodies to commence and run representative actions on their behalf could lead to the aggrieved person's interests being neglected in favour of other motives, such as a desire for a more lucrative settlement or political objectives. Further, representative bodies are not those whose reputations, finances and relationships are vulnerable during litigation. Allowing representative bodies to be the party instructing lawyers on the running of legal proceedings risks the pursuit of interests that are unrelated to those of the affected individuals.

Hon. Members:

Honourable members interjecting—

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

Order! The member for Berowra will just pause for a moment. There is far too much noise in the chamber. Out of respect for the member for Berowra I would ask members to remain silent or to leave the chamber while the debate continues.

Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

Thank you, Mr Speaker. On representative proceedings, it should be said that there are sufficient mechanisms to enable representative proceedings in the Federal Court under part IVA of the Federal Court of Australia Act. Further, loosening these rules in favour of unions who can pursue their own agendas rather than those of the complainant is not warranted. Our amendments propose to delete schedule 4 and leave the law as it stands in relation to representative actions.

In relation to costs, in schedule 5 the bill inserts a cost-neutral arrangement into the Human Rights Commission Act. This means that parties are expected to bear their own costs, with courts having power to make an alternative determination, considering the factors in the legislation, including: the financial circumstances of each party to the proceedings; the conduct of the parties, including conduct dealing with the commission; whether any parties have been wholly unsuccessful; whether any party has made an offer in writing to settle; whether the subject matter of the proceedings involves an issue of public importance; or any other matter the court considers relevant. We think discretion as to costs best sits with the court, and our amendments will remove schedule 5 of the bill and leave costs determinations at the discretion of the court, with the principle being that costs follow the event.

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

The government opposes these amendments. They again show the Liberal Party's hostility to the interests of workers—hostility to the interests of ordinary working people in our country—and they show the Liberal Party's hostility to access to justice. What a disgrace.

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

The question is that amendments (9) and (10) be disagreed to.

Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

by leave—I move amendment (11) as circulated in my name:

(11)   Schedule 8, item 2, page 44 (lines 9 and 10), omit the item.

Amendment 11 seeks to retain the principle of equality of opportunity, which is a fundamental principle for those of us on this side of the House, in the objects act. We believe equality of opportunity should be retained, because equality of opportunity offers a state of fairness in which individuals are treated equally, and it's a fundamental principle of the Sex Discrimination Act. The circumstances of an individual's birth should not determine their future status. It's the application of effort and competition that's key. Equal opportunity implies that people should be judged on their merits and not discriminated against on the basis of sex in employment or access to public services. Equality of opportunity is the principle that people should be given the same opportunity to exercise their talents and abilities but that it's up to the individual to apply themselves to that opportunity as to what they will ultimately achieve. And we think this principle should remain in the act.

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

The government opposes this amendment, which, yet again, like all the other Liberal amendments, is directly contrary to the Respect@Work report and—just to be clear—just like the bill that the Liberal Party brought to the parliament last year was contrary to the Respect@Work report. They are at it again and they are seeking to move away from very clear recommendations in the report.

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

The question is that amendment (11) be disagreed to.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

By leave—I move amendments (1) to (8), as circulated in my name, together.

Nobody should be subjected to conduct at work which is offensive, which is intimidating or which is humiliating. When antidiscrimination law is at its most effective no protected characteristic is more important than any other. You should not be subject to a hostile work environment because of your sex. There is wide agreement on that from our entire community, but that is not enough. You should not be subject to a hostile work environment because of your sexuality.

I celebrate the respect at work bill and I commend the government for putting forward this legislation at this time. However, in the noble pursuit of swiftly implementing the remaining findings of the Respect@Work report, this bill is too narrowly focused on sex. Hostile environment provisions and the positive duty to prevent discrimination do not extend to the full range of characteristics protected under the Sex Discrimination Act, including sexual orientation, gender identity, intersex status, pregnancy or relationship status. In particular, this bill does not provide appropriate protection to LGBTQ people. That is absolutely crucial in our consideration because there's ample evidence that LGBTQ people are particularly vulnerable to hostile environments in the workplace and are particularly vulnerable to the mental health impacts of such environments.

Hon. Members:

Honourable members interjecting—

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

Order! Can members please sit quietly or leave the chamber so the member for Wentworth can be heard in silence.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

Thank you. The bill also creates inconsistency in terms of what we're asking from business, who must already comply with antidiscrimination law that relates to all the protected characteristics under the Sex Discrimination Act.

The amendment I have moved extends the hostile workplace environment and positive duty provisions in this bill to cover all characteristics that are protected under the Sex Discrimination Act. It provides protections for the LGBTQ community and greater consistency and ease of implementation for business. I commend the amendment to the House.

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

These amendments that are moved by the member for Wentworth propose to extend the hostile workplace environment, sex based harassment and positive duty provisions to all of the protected attributes under the Sex Discrimination Act. While I can understand the sentiment that lies behind the amendments that the member for Wentworth has moved, it is the government's position that this is not the time—that is, the context of this bill—for these particular expansions of a whole range of provisions in the Sex Discrimination Act.

The government's focus in bringing this bill to the parliament was to ensure alignment with the recommendations of the Respect@Work report. That report—sadly, ignored for more than a year by the former government—was delivered by the Sex Discrimination Commissioner following a very broad national inquiry, one of the largest inquiries ever conducted by any commissioner at the Australian Human Rights Commission. It was a broad national inquiry that many hundreds of Australians made detailed submissions to, with many public sessions conducted by Kate Jenkins, the Sex Discrimination Commissioner, and it produced, as we all now know—I think the former government would have preferred that we knew nothing about the excellent Respect@Work report, because they sat on it for more than a year. But, as we now know, here's this major inquiry. The former government's response to it was to say that they were going to implement all of its recommendations, and when it came to it, in August 2021, and the government did bring a bill to the parliament we saw that they had no intention of implementing all of the recommendations of the Respect@Work report.

What our government has done, having made the clearest of clear commitments at the election, was to consult with a very broad range of stakeholders on the provisions that the House can see are now in the bill that is before the House. These provisions build on the extensive consultation that underpin the Respect@Work report. As I have said in my second reading speech and in my summing-up speech, this bill implements the remaining recommendations of the Respect@Work report, which is what this House should be engaged in.

Expanding the bill, as the member for Wentworth's amendment would do, beyond what was recommended in the Respect@Work report would require further consultation with all of the stakeholders that the government has consulted with in relation to the provisions of the bill. It's our view that this is the appropriate time for honouring the commitment that we took to the election, which was to pick up the remaining recommendations of the Respect@Work report and bring them to the parliament. That's what this bill does. Significant time has passed since the Respect@Work report was released by the former government in March 2020. The former government of course had had the report for some months before then. The further consultation that would be required to go through the quite complex, albeit very well-intentioned, amendments that the member for Wentworth brings to the parliament would delay the passage of this bill.

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

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.