Zali Steggall MP speaks on Anti-Discrimination Bill and Respect@work

27 October 2022

I speak in support of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The shocking revelations of the Respect@Work report were deeply alarming to so many Australians. It reflected toxic cultures and systemic failures that have persisted for far too long in Australian workplaces. It's time that this is resolved. I welcome this bill and its endeavours to implement meaningful change.

I previously spoke on the impacts of unacceptable delays when the former government finally began implementing the recommendations of the Respect@Work report during the last parliament. The previous legislation was a good step but it failed to legislate enough of the report's recommendations. It's so important that this parliament adequately address sexual harassment in the workplace and legislate the remaining recommendations.

I again wish to thank all of those people who came forward to share their experiences and insights with the Australian Human Rights Commission. This would not have been an easy thing to do. They should never have had to endure the harassment they faced. Their courage in coming forward is making a profound difference. I'd also like to thank the commissioner, Kate Jenkins, and her staff.

This is our opportunity to help extinguish predatory cultures in the workplace and protect Australian workers from sexual harassment and assault. Upon reviewing this legislation, it was clear to me that this bill seeks to implement improvements that are more consistent with the rights that Australians are entitled to in their workplaces: the right to equality and nondiscrimination, the right to freedom of expression, the right to privacy and reputation, the right to the highest attainable standards of physical and mental health, and the right to work. Sexual harassment and lack of enforced accountability threaten all of these rights for Australian workers. That's why we need this change.

This bill addresses the significant issues raised in the Respect@Work report, the release of which corresponded with such high-profile instances and allegations of sexual harassment and assault in the workplace, including in this very building. They were incredibly shocking and led to the March4Justice and a real mobilisation around saying: 'Enough! Things need to change.' The bill implements a positive duty, which puts the onus on employers to ensure they are fostering safe and inclusive workplaces. However, we need to ensure the legal and regulatory framework is clear and considered. Employees in Australia are diverse, and therefore employers should be able to access clear guidance to best practice. I would ask the government to ensure that the new framework proposed in this bill is widely publicised so that every employer can be on the same page with these important changes. There is heightened cultural focus and there is justifiable public pressure to implement improvements, and it is our job, as elected representatives, to set the best example and take the lead in securing this vital change.

The key impacts of this legislation across the proposed eight schedules—and I'm pleased to see some of these positive recommendations—include the prohibition of conduct that subjects a person to a hostile workplace environment on the grounds of sex; the introduction of a positive duty on employers to eliminate unlawful discrimination, including sexual harassment; allowing the Australian Human Rights Commission to conduct inquiries into systemic unlawful discrimination or suspected unlawful discrimination; and extending the period of time between the alleged incident and the lodging of a complaint.

When I spoke to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 in the last parliament, I pushed the former government on their hesitation to implement more of the recommendations from the report, so I'm pleased to see this government, in this bill, pick up what was left out of the previous government's legislation. This bill goes further and is a far stronger approach to tackling this pressing issue.

Many are wondering about the employer's responsibility and positive duty. One of the key changes in this bill, and probably one of the most contentious, is the introduction of a positive duty on employers to ensure workplaces are safe and free from sexual harassment. Sexual harassment is not a women's issue; it is a societal issue. Workplace harassment is not inevitable; it is preventable. This needs to be a collective effort between employers, employees, customers and clients to ensure everyone is being protected from sexual harassment. It is through the fostering of accountability measures and steps to educate each other that this long-persistent problem can finally start to be resolved. I'm pleased to see the inclusion of schedule 2, which pertains to positive duty as a legal and regulatory framework for an employer's responsibility for keeping their staff safe from harassment.

This issue is not confined only to instances of harassment between colleagues. Employees, especially those who work in industries where alcohol is served, need to feel safe in their roles with customers as well. Hospitality venues in my electorate generally have a high turnover of young staff who are earning money doing night shifts while finding their feet in young adulthood. My office has heard instances of young workers being harassed by intoxicated patrons, sometimes on a regular basis by the same offenders. Ask-to-leave actions or temporary bans from venues do not solve the root of the problem.

I fear there's also an existing perspective that, if a patron is a reliable contributor to the fiscal intake of a business, their behaviour may be dismissed with words like 'he doesn't mean any harm' or 'he's just from another time'. That misogynistic behaviour that allows this conduct to occur is not acceptable, and it needs to be adequately reprimanded. The safety and wellbeing of staff must be prioritised by employers. Employers need to be held accountable for how they deal with harassment claims. These claims must always be taken seriously and investigated properly, with meaningful actions taken to prevent them from happening again. This is the positive duty that is outlined in this bill, and failure to act accordingly would see employers held accountable.

I know there is always that incredible tension in the fears of an employee complaining of a situation—the fear of how that will impact their employment status, especially when the complaint might have serious implications for where they work. It's so incredibly important that the legislative framework be established to ensure there is a strong protective environment in which complaints can be brought forward. The right to a safe and secure workplace really is something that should go with employees' rights.

It's so important in particular where workers experience sexual harassment that they're supported by their employer. The phrases 'they don't mean any harm' and 'they're just from another time' are just not good enough. We simply cannot allow sexual harassment conduct to continue or to occur. The excuses are what have maintained this behaviour in the workplace for far too long. It is no excuse to be of another generation or not understand the complications or what is wrong with this behaviour. Harassment can have significant impacts on a person's health and wellbeing, and mental health aftercare may be needed to work through some of these impacts. When I attended the March4Justice in the last parliament on the grounds in front of parliament, it was quite amazing walking through the crowd of so many women of all ages, all cultural and ethnic backgrounds, sharing their stories and talking of events and incidents that had occurred to them, realising just how common it was and just how much there was a need for change.

I note that the Australian Nursing and Midwifery Federation has raised concerns with the lack of definition of what constitutes positive-duty guidelines and their lack of enforceability and oversight. The Australian Nursing and Midwifery Federation made a submission to the Senate committee inquiry into the bill, and their submission states:

Section 35A of the Bill provides the Commission with functions in relation to the positive duty. Those duties include the preparation and publishing of guidelines for complying with the positive duty, however the guidelines themselves are not enforceable.

The ANMF considers that unless these guidelines are enforceable, there will be uncertainty in relation to what constitutes compliance with the positive duty.

With a legal background and knowing the litigation process in our courts, I urge the government to take on board that submission and ensure the positive-duty guidelines are clear for employers. This is an incredibly important framework and a key component to tackling this issue. It's vitally important that there is clarity in what is expected of employers. We cannot afford uncertainty and confusion. We need to ensure it is done properly.

One of the key concerns and one that will be the focus of a number of amendments in the consideration in detail stage is the allocation of costs. The cost-neutrality approach, as outlined in this bill, will implement a default position whereby each party will be responsible for covering their own legal costs should a workplace harassment claim be brought before the courts. We know cost is often a serious hurdle to employees bringing forward a complaint, so I do welcome the changes the bill provides in relation to the allocation of cost. I note, though, that there is capacity for special costs orders to be made in the event of conduct by a defendant, for example, to unnecessarily extend or have onerous interim applications within proceedings and cause a complainant to incur unnecessary costs.

I know some groups are concerned that this remains a barrier to justice for plaintiffs who simply don't have the resources to fund legal representation and hence are severely disadvantaged in proceedings or mediation, especially against larger businesses or corporations with vastly greater legal resources. I'd like to urge the government to look into this issue, especially when it may be a question of making legal aid available in the way it is in the family law system.

While I support this idea that each party bears its own costs—I am very familiar with it from a family law point of view—I am not in support of some of the amendments being proposed, and I would urge the government to look at this issue. We have to have a system where people have access to justice and cost is not a barrier to being able to bring forward an action for harassment in the workplace. I support the approach outlined in the bill, which provides for 'own costs'—where each party bears their own costs—but gives the judge discretion to overturn own-cost rulings in the event of vexatious claims, similar to what is provided for in the family law system. I believe that will lead to a reasonable balance and improve the situation at the moment.

I would ask the government to consider an amendment that I am intending to move around inclusive language. This is a strong bill. However, I believe an even more holistic approach is needed in schedule 8 to ensure improvements are equitable throughout the national workforce. I believe that the language currently in place in the Sex Discrimination Act allows employers to make room for instances of exclusion.

Our workplaces, especially with the younger generations coming through, are diverse and dynamic. LGBTQI+ Australians often have their experiences regarding sexual harassment under-reported. Gender association is changing, and we have to recognise that young people don't want to be defined by gender norms. But this legislation is worded in the old-school way; it is still stuck in the past. Schedule 8 seeks to change the wording to 'substantive equality' for men and women. I believe it is an objective of the Sex Discrimination Act to achieve substantive equality for everyone, irrespective of gender or sexual orientation, rather than simply for 'men and women', as it is currently written. Modern legislation should reflect modern Australia. I will therefore be putting forward a motion to amend this wording to ensure our diverse workforce is protected equally in this bill and that all generations see themselves and recognise themselves in the bill and the language the government is using.

I'm pleased to see the inclusion of the seven important recommendations of the Respect@Work report in this bill and I commend the government for putting this on their agenda so early in the term. Sexual harassment is not a women's issue; it is a societal issue. Workplace harassment is not inevitable. Every Australian has the right to feel safe from harassment in their workplace. I urge the government to think about the language being used: reflect modern Australia and use inclusive language. Sexual harassment and assault can have severe and lasting impacts on a person's self-worth and emotional health. I look forward to the implementation of this bill and the eradication of harassment and discrimination based on sex in Australia's workplaces. I commend this bill to the House.