In mid-March 2021, amendments were sought to the Sex Discrimination Act 1984 (Cth) (SD Act) by independent member Ms Zali Steggall OAM introducing the Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill (Bill). If passed, the Bill will address some of the shortcomings in the SD Act which were initially highlighted by the Australian Human Rights Commission’s report ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces ’ (Report) in March 2020.
In summary, one of the shortcomings that has been identified is the limited utility of the SD Act as it does not apply to judges and Members of Parliament because of the narrow definition in the SD Act as to the areas of public life that are covered by the legislation.
By way of explanation, under the SD Act, sexual harassment refers to any unwelcome conduct of a sexual nature, including any unwelcome sexual advances, unwelcome requests for sexual favours or unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances would have anticipated that the target would be offended, humiliated or intimidated.
However, the SD Act, as it currently stands, only prohibits sexual harassment in certain areas of public life, including employment. These specific areas are outlined in sections 28A to 28L of the Act, with section 28B of the Act making it unlawful for:
(i) an employer to sexually harass an employee or potential employee;
(ii) an employee to sexually harass another employee or potential employee; and
(iii) a workplace participant (being an employer, employee, commission agent, contract worker or partner) to sexually harass another workplace participant at a place that is a workplace of either or both of those people.
The effect of this is that the SD Act does not expressly prohibit sexual harassment beyond the areas specified by the SD Act. As a result, Members of Parliament are excluded as they are not viewed as “employees” of Parliament, nor as “employers” of Government provided staff who work within their office. Similarly, Judges and the staff that work for them within the courts are considered not to fall within the legislation for the same reason and neither group is currently captured within the narrow definition of ‘workplace participant’.
As a result, under the current legislation, members of Parliament and judges cannot be held personally liable for conduct amounting to sexual harassment, an exception which has caused concern given the recent spate of allegations involving both these groups. The proposed new amendments by the Government are looking to broaden the application of the SD Act to encompass these groups.
The SD Act in its current form also does not consider sexual harassment being perpetuated by, or against, individuals in positions which were either not conceived of at the time of enactment, such as contractors and gig economy workers. The Report noted that nature of work has fundamentally transformed since the introduction of the SD Act and traditional definitions of employment and sexual harassment have failed to keep pace with the evolving nature of work in the 21st century.
As a result, the Report has found that the SD Act fails to provide adequate protection in respect of sexual harassment which may take place in a workplace environment outside the strict employer-employee structure, such as between witnesses and lawyers, solicitors and barristers or gig-workers and their engagers.
Similarly, the Report observes that digital technology and social media have “reconceptualised the contemporary employment relationship and fundamentally altered the reach, speed and permanency of work-related conduct and expectations” and the SD Act does not reflect these new circumstances or community expectations.
Among other legislative and regulatory recommendations, the Report proposes rectification of these deficiencies of the SD Act to address the prevalence of workplace sexual harassment.
The Bill adopts several of the Report’s recommendations and seeks to amend the Act by:
(a) repealing sections 28B to 28L which outline specific circumstances in which sexual harassment is prohibited and replacing this with a blanket prohibition on sexual harassment in any area of public life;
(b) clarifying that individuals in positions either not previously conceived of or historically overlooked are adequately protected from and personally liable for sexual harassment;
(c) providing protection against sexual harassment that may occur in circumstances not presently envisaged by the Act, including between witnesses and lawyers, lawyers and judicial officers or court staff, solicitors and barristers or between barristers; and
(d) expanding the provisions which prohibit the aiding and abetting of sexual discrimination to be extended to the aiding and abetting of sexual harassment.
On 8 April 2021, after the Bill was introduced, the Government published its long-awaited response to the Report, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Response). The Response addresses the recommendations made in the Report, and outlines proposed legislative and regulatory reforms, including amendments to the Act which largely mirror those contained in the Bill. The Response also indicates that additional changes will be made to the Fair Work Act 2009 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) to expand the powers of the Fair Work Commission and Australian Human Rights Commission.
There has already been criticism that the Response does not go far enough, with Sex Discrimination Commissioner Kate Jenkins (the author of the Report) taking issue with the failure of the proposed Response to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sexual harassment and discrimination. The Bill also does not propose to introduce a positive duty. This recommendation was noted but effectively side stepped in the Response, with the Government relying upon the positive duties contained in the model work health and safety legislation to challenge whether further positive duties in the amended SD Act would increase uncertainty and duplication.
The Bill is currently before the House of Representatives but it is likely that this will be replaced by proposed legislation arising out of the Response which the Government has indicated it will have drafted by June 2021.