Jenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

As Senator Waters has indicated in her earlier contribution, the Greens and Labor have, separately, concluded that this bill requires substantial amendment. Certainly, from a Labor perspective, we recognise that there is only so much that can be done in the chamber when a bill with as many deficiencies as this one has is presented to us. The Labor approach has been to try and move amendments which remedy the worst of the omissions and which try and deal as best we can with the recommendations made by Commissioner Jenkins in her very substantive and very significant report.

One of those recommendations is the positive duty, and, indeed, this is at the heart of the report that was brought forward by Commissioner Jenkins. Just to put it really plainly for people who are listening at home, right now the tool we rely on to get workplaces to become safer is an individual making a complaint. When surveyed, Australian women overwhelmingly say, yes, they have been sexually harassed at work, often in the last 12 months. The numbers are extraordinary. Most of them don't make a complaint. Most of them don't ever tell anyone about it at all. Unfortunately, even in this building, we have stories about the consequences for women who make complaints. Women correctly apprehend that their careers, their livelihoods and their reputations are at stake when they are the complainant, and most women choose to remain silent. And the conclusion we should draw from all of those data points is that this is not an effective mechanism to make our workplaces safer. It won't be an effective mechanism to make this parliament safer, and it won't be an effective mechanism to make safer any of the workplaces around the country where women are seeking our support and seeking protection in this place. It's on that basis that Labor has concluded that we do wish to move here amendments to insert a positive duty obligation onto employers, consistent with the recommendation made by Commissioner Jenkins. Senator Waters has spoken already in her contributions so far about her views on this, and these are amendments that will be moved jointly by the Greens and Labor.

I want to make a few remarks about the drafting approach that we've taken. We are aware that we need to make sure that a positive duty does not create an unreasonable burden on employers, so the way our amendment is drafted will ensure that, consistent with recommendation 17, the measures required to fill a positive duty must be reasonable and proportionate, taking into account factors that include the size of the person's business or operations, the nature and circumstances of the business and operations, the person's resources, the person's business and operational priorities, the practicability and cost of the measures, and all other relevant facts and circumstances.

We also recognise that it will take time for employers to respond to a new obligation, so the amendments circulated indicate that it would not commence for six months following the passage of the bill. That will allow employers time to ensure that they are aware of and able to comply with their new obligation to take reasonable and proportionate measures to eliminate discrimination and sexual harassment, harassment on the ground of sex or victimisation in their workplace prior to the formal commencement of the duty. The amendment would also require the Human Rights Commission to develop guidance material for employers. This is because Labor wants to make it as easy as possible for employers to understand their obligations. The purpose of introducing a positive duty is not to make life difficult for Australian businesses. It is to make life better for Australian women.

Of course, many employers across Australia are already doing the right thing, and in some parts of Australia similar duties already exist in law. And let me tell you these duties in those places have not brought the economy crashing to its knees. Commissioner Jenkins herself responded to concerns that the introduction of a positive duty in the Sex Discrimination Act could create further complexity, uncertainty and duplication by saying this:

This would not impose an undue regulatory burden and has a greater chance of reducing the cost of sexual harassment to business.

Similar duties have been on the books in Victoria for a decade without any adverse impact on business, and the Respect@Work Council would work to ensure that the duties are clear, streamlined and easy to implement.

These amendments would also implement recommendation 18 of the Respect@Work report, which called for the Sex Discrimination Commission to be given the function of assessing compliance with the new duty and for enforcement. These powers are self-evidently necessary. They will, among other things, empower the commission to inquire into an organisation's compliance of positive duty in a prescribed range of circumstances, such as where the commission is satisfied that there are reasonable grounds to suspect that a contravention of the duty has occurred, and the commission will be empowered to issue compliance notices if it considers an organisation has failed to comply with the positive duty, enter into agreements or voluntary undertakings with an organisation and make an application to the Federal Court or the Federal Circuit Court for an order requiring compliance with the duty.

I want to acknowledge Senator Waters for her willingness to collaborate on this, and I again note that these are amendments that have been circulated jointly in our names. I seek leave now to move together items (1) to (4) on sheet 1369.

Leave is granted.

I, and also on behalf of Senator Waters, move opposition and Greens' amendments (1) to (4) on sheet 1369:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Schedule 1, item 77, page 19 (after line 9), after Division 5, insert:

Division 6 — Duty to eliminate discrimination, sexual harassment, harassment on the ground of sex and victimisation

47B Purpose of Division

The purpose of this Division is to provide for the taking of positive action by employers and persons conducting a business or undertaking to eliminate discrimination, sexual harassment, harassment on the ground of sex and victimisation.

47C Duty to eliminate discrimination, sexual harassment, harassment on the ground of sex or victimisation

(1) This section applies to an employer or a person conducting a business or undertaking who has a duty under this Act not to engage in discrimination, sexual harassment, harassment on the ground of sex or victimisation.

(2) It is unlawful for the employer or person to fail to take reasonable and proportionate measures to eliminate that discrimination, sexual harassment, harassment on the ground of sex or victimisation as far as possible.

Note: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

(3) In determining whether a measure is reasonable and proportionate, the following factors must be considered:

(a) the size of the employer's or person's business or operations;

(b) the nature and circumstances of the employer's or person's business or operations;

(c) the employer's or person's resources;

(d) the employer's or person's business and operational priorities;

(e) the practicability and the cost of the measures;

(f) any other relevant factors.

Note 1: Other relevant factors may include, for example, systemic issues within a particular industry or workplace.

Note 2: Examples of measures that may be reasonable and proportionate include the following:

(a) a small, not-for-profit community organisation takes steps to ensure that its staff are aware of the organisation's commitment to treating staff with dignity, fairness and respect, including developing and implementing a clear procedure for managing staff complaints;

(b) a large company undertakes an assessment of its compliance with this Act and, as a result of the assessment, the company develops a compliance strategy that includes training, regular monitoring, annual progress reporting, and continuous improvement of the strategy.

47D Commission may assess compliance etc.

(1) The Commission may, on its own initiative or on application by a person, inquire into the extent to which an employer or a person conducting a business or undertaking has complied with section 47C if the Commission is satisfied that:

(a) the subject of the inquiry:

(i) raises an issue that is serious in nature; and

(ii) relates to a class or group of persons; and

(b) there are reasonable grounds to suspect that one or more contraventions of section 47C have occurred; and

(c) the inquiry would advance the objectives of this Act.

(2) As soon as practicable after commencing the inquiry, the Commission must give the employer or person a written notice (a show cause notice):

(a) stating the grounds on which the Commission commenced the inquiry; and

(b) inviting the employer or person to give the Commission, within 28 days after the day the notice is given, a statement setting out the measures the employer or person has taken to comply with section 47C.

(3) The Commission may, in writing, extend the period of 28 days referred to in paragraph (2)(b) if:

(a) the employer or person requests the extension by giving notice in writing to the Commission before the end of that period; and

(b) the Commission is satisfied that the employer or person has a reasonable excuse for not providing a statement in response to the show cause notice within that period.

(4) If the Commission is satisfied as a result of the inquiry that the employer or person is not complying with section 47C, the Commission may do either or both of the following:

(a) accept a voluntary undertaking given by the employer or person under section 47E;

(b) give the employer or person a written notice under section 47G.

47E Enforceable voluntary undertakings

(1) If the Commission is satisfied as a result of an inquiry under section 47D that an employer or a person conducting a business or undertaking is not complying with section 47C, the Commission may accept any of the following undertakings:

(a) a written undertaking given by the employer or person that the employer or person will, in order to comply with section 47C, take specified action;

(b) a written undertaking given by the employer or person that the employer or person will, in order to comply with section 47C, refrain from taking specified action;

(c) a written undertaking given by the employer or person that the employer or person will take specified action directed towards ensuring that the employer or person does not contravene section 47C, or is unlikely to contravene section 47C, in the future.

(2) The undertaking must be expressed to be an undertaking under this section.

(3) The employer or person may withdraw or vary the undertaking at any time, but only with the written consent of the Commission.

(4) The consent of the Commission is not a legislative instrument.

(5) The Commission may, by written notice given to the employer or person, cancel the undertaking.

47F Enforcement of undertakings

(1) The Commission may apply to the Federal Court or the Federal Circuit Court for an order under subsection (2) if:

(a) an employer or a person conducting a business or undertaking has given an undertaking under section 47E; and

(b) the undertaking has not been withdrawn or cancelled; and

(c) the Commission considers that the employer or person has breached the undertaking.

(2) If the court concerned is satisfied that the employer or person has breached the undertaking, the court may make any or all of the following orders:

(a) an order directing the employer or person to comply with the undertaking;

(b) any order that the court considers appropriate directing the employer or person to compensate any other person who has suffered loss or damage as a result of the breach;

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

47G Compliance notices

(1) If the Commission is satisfied as a result of an inquiry under section 47D that an employer or a person conducting a business or undertaking is not complying with section 47C, the Commission may give the employer or person a written notice (a compliance notice) under this section.

(2) However, the compliance notice must not be given unless:

(a) the Commission has given the employer or person a show cause notice under subsection 47D(2); and

(b) either:

(i) the employer or person has given a statement in response to the show cause notice; or

(ii) the 28 day period (or if extended under subsection 47D(3), that longer period) specified in the show cause notice has passed.

(3) The compliance notice must:

(a) set out the name of the employer or person; and

(b) set out the details of the employer's or person's non-compliance; and

(c) specify action that the employer or person must take in order to address the non-compliance; and

(d) specify a reasonable period within which the employer or person must take the specified action; and

(e) specify a reasonable period within which the employer or person must provide the Commission with evidence that the employer or person has taken the specified action.

(4) The Commission may apply to the Federal Court or the Federal Circuit Court for an order under subsection (5) if:

(a) the Commission has given an employer or a person conducting a business or undertaking a compliance notice; and

(b) the Commission considers that the employer or person has failed to comply with the notice.

(5) If the court concerned is satisfied that the employer or person has failed to comply with the notice, the court may make any or all of the following orders:

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

(b) any order that the court considers appropriate directing the employer or person to compensate any other person who has suffered loss or damage as a result of the non-compliance;

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

47H Powers of Commission in relation to inquiries

In conducting an inquiry under section 47D, Division 3 of Part II of the Australian Human Rights Commission Act 1958 applies as if the inquiry were an inquiry under that Division.

47J Delayed commencement of positive duty

Application of positive duty

(1) Section 47C does not apply to an employer, or to a person conducting a business or undertaking, before the enforcement day.

(2) The enforcement day is the day occurring 6 months after the commencement of this section.

Inquiries into non-compliance with positive duty

(3) The Commission must not commence an inquiry under section 47D before the enforcement day.

47K Commission must publish guidance material

(1) The Commission must develop guidance material on the operation of section 47C.

(2) In developing the guidance material, the Commission must consult with relevant stakeholders, including the Respect@Work Council and its associate members.

(3) The Commission must:

(a) make the guidance material readily accessible to the public as soon as practicable before the enforcement day (within the meaning of subsection 47J(2)); and

(b) ensure that the guidance material is kept up to date.

(3) Schedule 1, page 19 (before line 10), before item 78, insert:

77A After paragraph 48(1)(c)

Insert:

(ca) to exercise the powers conferred on it by Division 6 of Part II;

(4) Page 23 (after line 11), at the end of the Bill, add:

Schedule 2 — Amendments contingent on the Federal Circuit and Family Court of Australia Act 2021

Sex Discrimination Act 1984

1 Subsection 47F(1)

Omit "Federal Circuit Court", substitute "Federal Circuit and Family Court of Australia (Division 2)".

2 Subsection 47G(4)

Omit "Federal Circuit Court", substitute "Federal Circuit and Family Court of Australia (Division 2)".