Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Hansard source

I rise to sum up the debate on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 and I thank all senators for their contributions to the debate. The Australian government is pleased to be taking action to strengthen and streamline the national legal frameworks that deal with sexual harassment as part of its long-term strategy for preventing and addressing sexual harassment, outlined in the Roadmap for respect:preventing and addressing sexual harassment in Australian workplaces.

The bill makes important changes to the Sex Discrimination Act 1984, the Australian Human Rights Commission Act 1986 and the Fair Work Act 2009 to ensure Australia's legal frameworks are effective in preventing and responding to sexual harassment. The changes made by the bill give effect to recommendations 16, 20, 21, 22, 29 and 30 of the Respect@Work report by clarifying that the Sex Discrimination Act covers judges, members of parliament and ministerial staff; ensuring that state and territory public servants are covered by the Sex Discrimination Act, by removing the existing exemption; and expanding the coverage of the protection from workplace sexual harassment under the Sex Discrimination Act by picking up the broader concepts of 'worker' and 'persons conducting a business or undertaking' as defined under the Work Health and Safety Act to ensure all paid and unpaid workers, including volunteers and interns, are protected from sexual harassment under the act.

The changes also include introducing an express provision to clarify that sex based harassment is prohibited under the Sex Discrimination Act; inserting a new object clause in the Sex Discrimination Act to make it clear for decision-makers that the act aims to achieve, so far as is practicable, equality of opportunity between men and women in addition to the elimination of sex discrimination and harassment; and expanding the coverage of the ancillary liability provisions in the Sex Discrimination Act to include sexual harassment and the new sex based harassment provision.

The changes also include amending the Australian Human Rights Commission Act to extend the time period for making a complaint under the Sex Discrimination Act, meaning that a complaint cannot be terminated on the grounds of time unless it has been 24 months since the alleged incident, rather than six months; clarifying that victimising conduct can form the basis of a civil action for unlawful discrimination under the Sex Discrimination Act, in addition to a criminal complaint; clarifying that the Fair Work Commission can, under the existing antibullying jurisdiction, make orders to stop sexual harassment; and clarifying that sexual harassment can be conduct amounting to a valid reason for dismissal under the unfair dismissal provisions of the Fair Work Act.

Whilst this was not recommended in the Respect@Work report, the bill also enables an employee to take up to two days of compassionate leave if the employee or the employee's current spouse or de facto partner has a miscarriage. The government has also made changes to the Fair Work Regulations 2009 to give effect to recommendation 31.

The Senate Education and Employment Legislation Committee has reviewed the bill and recommended, after feedback, to defer commencement of the extended antibullying jurisdiction of the Fair Work Commission until no earlier than two months after royal assent. The government has circulated amendments to the bill in line with this recommendation. The committee report also contains a number of dissenting recommendations and comments, many of which refer to implementing new changes which would necessitate substantial policy consideration and consultation beyond that undertaken by the Sex Discrimination Commissioner in developing the Respect@Work report. In respect of a positive duty on employers to prevent sexual harassment, sex based harassment and discrimination under the Sex Discrimination Act, further policy consideration and consultation is required to ensure such a duty would operate effectively without increasing complexity for those seeking to use the protections. This includes an assessment against the model work health and safety laws, which already impose a positive duty on employers to protect workers from health and safety risks, including psychosocial risks such as sexual harassment, so far as reasonably practicable. Work health and safety laws also provide for compliance, enforcement and inquiry functions to be exercised by work health and safety regulators. Employers that fail to meet obligations under work health and safety laws can be subject to prosecution and severe penalties.

In respect of providing the Australian Human Rights Commission with new powers and functions regarding sexual harassment, the government notes that it would not be appropriate to provide the Australian Human Rights Commission with a discrete function in respect of sexual harassment without first considering the Australian Human Rights Commission's broader function and roles with respect to other forms of discrimination and harassment, as well as the roles of other regulators that can already inquire into such conduct. More work is therefore required to consider the practical requirements of implementation, including funding requirements, evidence gathering, procedural fairness, privacy and penalties for noncompliance.

In respect of amending the Australian Human Rights Commission Act to allow representative groups to bring representative claims to court, I note that there is already an existing mechanism to enable representative proceedings in the Federal Court under part IVA of the Federal Court of Australia Act 1976. In respect of amending the Australian Human Rights Commission Act to insert a cost-protection provision consistent with the Fair Work Act, further consideration is required in light of the broad discretion already available with respect to costs in section 43 of the Federal Court of Australia Act 1976 and section 79 of the Federal Circuit Court of Australia Act 1999, which could include, for example, ordering parties to bear their own costs or pay another party's costs. I have also written to the Federal Court to commend the report for their consideration, particularly the impact different cost orders may have on victims of sexual harassment.

In respect of including gender identity and sex characteristics as protected attributes under the Fair Work Act, I note that this was not recommended in the Respect@Work report and would require further consideration. I note that the Fair Work Act already provides protections against unlawful termination and adverse action on certain discriminatory grounds, and the Sex Discrimination Act already provides protections against discrimination on other grounds of gender identity and intersex status. In respect of including a clear prohibition on sexual harassment in the Fair Work Act and a new complaints process in the Fair Work Commission for workers with current or historical experience of sexual harassment, I note the government outlined in the road map that it would review the Fair Work system once the amendments in the bill have been implemented and their impact assessed.

In respect of providing 10 days paid family and domestic violence leave in the National Employment Standards under the Fair Work Act, this bill is not the appropriate legislative vehicle to consider broader reforms to family and domestic violence leave. The Fair Work Commission is currently reviewing the family and domestic violence leave clause in modern awards. Further consideration of the issues of paid leave by the government will be appropriately informed by the commission's consideration of the issue. Employers of course remain free to provide entitlements that suit their workplaces.

In respect of implementing ILO convention 190, the government supports the underlying principles of the convention and is considering implementation as part of the usual treaty processes, including by assessing the extent to which Australia's existing frameworks already give effect to the convention. In respect of implementing any further recommendations, the government will continue to act in line with its commitments in the Roadmap for Respect.

The committee report also contains a number of dissenting recommendations and comments which relate to amendments to the bill. In respect of the requirement that conduct that is seriously demeaning, among other things, to meet the new definition of sex based harassment that would be inserted into the Sex Discrimination Act by the bill, I note that this requirement was chosen to reflect the case law on sex based harassment and, following stakeholder consultation, to ensure the provision only captures conduct that is more serious or repetitive. The government's view is that there is a need for clarity about the level of conduct that should be prohibited and made unlawful in federal antidiscrimination law.

In respect of the language of the new objects clause for the Sex Discrimination Act that would be implemented by the bill, this draft reflects the government's commitment in the Roadmap for Respect that equality of opportunity between men and women in addition to the elimination of discrimination underpins the operation of the Sex Discrimination Act. This language acknowledges that more affirmative actions in addition to the elimination of discrimination and harassment are required to achieve substantive equality.

In respect of broadening stop-sexual-harassment orders to cover sex based harassment, I note under the Fair Work Commission's antibullying jurisdictions the definitions of 'bullying' and 'sexual harassment' are canvassed broadly enough to capture sex based harassment. Where sex based harassment constitutes sex discrimination and is not otherwise captured as bullying or sexual harassment, there are existing antidiscrimination mechanisms in Australia that provide a right of recourse to individuals who have been subject to discriminatory behaviour. In clarifying that sex based harassment can amount to a valid reason for dismissal under the Fair Work Act, the bill implements recommendation 30 of the report. It clarifies that sexual harassment can be conduct amounting to a valid reason for dismissal.

In summary, the bill will ensure all Australians are protected from workplace sexual harassment by expanding the scope of existing sexual harassment prohibition, promoting clarity for employers and workers and reducing procedural barriers for sexual harassment complaints. On that basis, I commend the bill to the Senate.

Question negatived.