Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Hansard source

I rise to also make a contribution on the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. This bill was meant to do one job: implement recommendation 25 of the Respect@Work report, the recommendation to create a simple cost-neutral jurisdiction in our federal courts and to remove barriers to women who deal with sexual harassment in the workplace. Recommendation 25 dealt specifically with pursuing sexual harassment claims in the courts, and a bill to address that recommendation would have undoubtedly had support right across this chamber. But this bill does not implement recommendation 25 of the Jenkins report. This bill does not implement a provision modelled on section 570 of the Fair Work Act. It is not aimed at sexual harassment in the workplace. Instead, it applies to all federal discrimination matters. That is a massive problem, because we know that federal discrimination legislation in this country is fundamentally broken.

Instead of protecting women, as the Sex Discrimination Act was intended to do, we now see in this country a situation where the act is used as a weapon to punish and silence women. We have seen that happen recently in the courts with the absurd situation of the Tickle v Giggle case, where an Australian woman has been punished and fined for starting a female-only app. The decision in that case makes clear that the courts will interpret the current legislation such that 'female' can mean someone who is biologically male. The courts found that sex is changeable and can relate to what clothes you wear or how you present yourself, which means that all the provisions in the Sex Discrimination Act which were intended to specifically allow and encourage single-sex services for women and girls are now all but impossible to rely on, which means that Australians who offer single-sex services for women and girls—services which millions of Australian women and girls rely upon—risk being taken to court and fined just for doing this. I am concerned that this bill will incentivise exactly that type of litigation we have seen in the Tickle v Giggle case, by protecting an applicant who wants to try and undermine something like single-sex services for women and girls from having to pay costs even if the vast majority of their claims are dismissed. It is very easy to predict how this will be used to target any organisations, clubs or volunteers who seek to offer single-sex sport for women, for example.

This bill presents a free swing in the courts for activists who want to force a sporting body to allow males into female sport. Thanks to the changes the Gillard government implemented in 2013, it's already incredibly difficult to offer single-sex sport, services or facilities for women and girls in this country. That's because the previous Labor government, the Gillard government, took the definition of 'woman' out of the act and severed the term 'sex' in the Sex Discrimination Act from its biological meaning, as the UN Special Rapporteur on violence against women and girls, Reem Alsalem, said last week in her statement on the Australian Sex Discrimination Act and the implications of the current interpretations of it:

I am also concerned that the court decision could make it potentially harder for women and girls to argue for the proportionality, legitimacy and necessity of female-only spaces in some circumstances. Even if unintentional, the ruling by the Federal Court may have made it potentially harder for women and girls in Australia to avail themselves of the full breadth of protections provided by the international human rights treaties that Australia is part to, including CEDAW and the ICCPR …

Ms Alsalem correctly stated:

While the Act differentiates between the concepts of sex and gender identity, this distinction is abandoned in practice.

It is inexplicable and nonsensical that the Albanese government, in full knowledge that federal discrimination law allows a woman to be punished in a court just for offering single-sex female services, has chosen with this bill to make it easier for activists to lodge those very complaints in the court by expanding the intention of this bill out far more broadly than the Respect@Work report originally recommended. These are the unintended consequences that we may see.

This bill was supposed to be about implementing recommendations specifically about sexual harassment complaints. The Albanese government has taken a political decision here—let's be very frank about that—to apply this to all discrimination complaints, in full knowledge that many of these complaints that we are seeing more and more of here in this country, such as in the Tickle v Giggle case, are being used to silence and punish women. The way the Labor government has quietly extended this bill to include all types of discrimination complaints rather than to be specific to sexual harassment cases is eerily similar to the way they removed the meaning of 'sex' and the definition of 'woman' from the Sex Discrimination Act in 2013. In 2013 it was never mentioned by the government that their changes would have the effect of enabling a court to punish a woman for offering a female-only service. Their changes would have the Sex Discrimination Commissioner telling the court that the way you dress helps to determine your sex for the purposes of the act. They didn't mention any of that, and, a decade down the track, Australians are seeing the consequences of that sneaky omission.

Today, again, we have a bill being presented as being purely about sexual harassment cases, when the reality is that the government has decided that the bill will apply to all discrimination complaints, including those that activists will bring against women who are trying to offer single-sex services, single-sex sports or single-sex spaces. What we should be seeing here today is a bill that doesn't do what it was supposed to do but goes way beyond that.

The way this bill has been drafted means that, even if a complaint is brought on 10 grounds and nine are dismissed, the respondent will still have to pay all costs, because they lost on that one ground. And as I've just referenced, a discrimination complaint can be brought under current legislation in incredibly dubious circumstances, such as to compel women to accept males into female-only spaces. If someone who was forced into a court for a complaint like that wins on nine counts and loses on only one, why should they have to foot the bill for the whole case, including the grounds they won on? How does that give the best effect to justice?

The bill leaves open the possibility that the respondent must pay, even in respect of grounds that are unsuccessful, because these are all part of the same proceeding. If you are successful on any ground, you recover all your costs, and if you lose completely, all you have to do is bear your own costs. If you make 20 complaints or 20 claims and you succeed on just one, this bill leaves open the possibility that the respondent will be forced to pay for all of them. And it means that, in effect, there is no downside to pressing ahead with a low-prospect claim.

Again, if we're talking about claims of sexual harassment, that was a recommendation of the Respect@Work report and we understand why the government would want to do it, but what they propose here today goes so far beyond that that it's not even funny. This bill takes a different approach to what was recommended. It does not implement recommendation 25 of the Jenkins report and it does not implement a provision modelled on section 570 of the Fair Work Act. It's not aimed at sexual harassment in the workplace. Instead, it applies to all federal discrimination matters and it would become a catch-all provision extending into matters far beyond the recommended scope and intent. The government is not being up-front today about why it has done this and why it didn't want to bring in a bill that actually would have dealt with the scourge of sexual harassment in this country.