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senate vote 2021-09-01#8
Edited by
mackay staff
on
2021-09-03 10:38:57
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Title
Bills — Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; in Committee- Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 - in Committee - Overly high threshold
Description
<p class="speaker">Jenny McAllister</p><p>by leave—I move amendments (1) and (2) on sheet 1432, together:</p><p class="italic">(1) Schedule 1, item 60, page 14 (after line 25), after subsection 28AA(1), insert:</p>- The same number of senators voted for and against an [amendment](https://www.openaustralia.org.au/senate/?gid=2021-09-01.208.1) introduced by Queensland Senator [Larissa Waters](https://theyvoteforyou.org.au/people/senate/queensland/larissa_waters) (Greens), which means it failed.
- ### What does the amendment do?
- Senator Waters [explained that](https://www.openaustralia.org.au/senate/?gid=2021-09-01.208.1):
- > *While we welcome the new offence of sex based harassment, the bill sets the threshold for establishing sex based harassment as unwelcome conduct that is 'seriously demeaning'. That's a very high threshold. Many submitters, including the commission themselves, said that that was an inappropriately high bar that would prevent women from coming forward.*
- ### Amendment text
- > *(1) Schedule 1, item 60, page 14 (line 19), omit "seriously".*
<p class="italic">(1A) For the purposes of this Act, a person also harasses another person (the <i>person harassed</i>) on the ground of sex if:</p><p class="italic">(a) the person engages in unwanted conduct related to sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities; and</p><p class="italic">(b) the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the conduct would:</p><p class="italic">(i) violate the dignity of the person harassed; or</p><p class="italic">(ii) create or facilitate an intimidating, hostile, degrading, humiliating or offensive environment for the person harassed.</p><p class="italic">(2) Schedule 1, page 14 (line 26), omit "subsection (1)", substitute "subsections (1) and (1A)".</p><p>The Respect@Work inquiry heard that the existence of a sexually-permeated, hostile environment was not routinely recognised by individuals or by their organisations as sexual harassment. The Human Rights Commission was of the view that this amendment would provide clarity and certainty in the law, which, as we are frequently reminded by the Law Council, is in fact essential for the administration of justice. It would assist in setting clear boundaries in the workplace for what is and is not acceptable conduct. On that basis, again, Commissioner Jenkins recommended this change that we are now proposing, as recommendation 16c.</p><p>Again and again and again, senators are rising in this chamber to urge the implementation of the recommendations of the <i>Respect@Work</i> report. At the risk of tedious repetition, I'll make this point again: the government said all of the 55 recommendations are supported, and yet so few of them appear in the legislation before us. On Monday, when Prime Minister Morrison stands up at the National Summit on Women's Safety and makes his big speech about how terrific it is that this legislation has made it through the parliament, I hope that he fronts up and is honest with Australian women. I hope he tells them that there are just a handful of the 55 recommendations that have actually been implemented as part of this legislation, and that, in fact, so many of the recommendations that they purport to accept are merely noted and then pushed to one side or kicked into the long grass for some interminable process for which there is no end point and no prospect of a meaningful conclusion. All we can conclude, witnessing the behaviour of the government in this chamber, is that they are not in any way interested in providing a meaningful legislative response to the issues that were identified by Commissioner Jenkins and which are so clearly laid out in this report.</p><p>It's clear that the change that I am now proposing in the final amendments to be moved by Labor does not have the support of the majority of the Senate at this time. Nonetheless, we are moving these amendment to ensure that this important recommendation of the Sex Discrimination Commissioner's landmark report is not ignored in this debate. Unfortunately, it has been ignored by the Morrison government. The Morrison government said that it agreed with recommendation 16(c) of the <i>Respect@Work</i> report in principle, but it has ignored it in practice.</p> <p class="speaker">Larissa Waters</p><p>[by video link] I will make a brief contribution on opposition amendments (1) and (2) on sheet 1432. We again support these amendments, which in fact address recommendation 16(c) of the <i>Respect@Work</i> report—that same report that the government claimed that they would accept all the recommendations of. And yet they seem to have put forward a bill that resembles Swiss cheese, but, with so many holes in it, it is more hole than cheese. We support recommendation 16(c) and we support these amendments, which would create a prohibition on creating or facilitating a hostile working environment.</p><p>In many ways, this creation of a positive duty to maintain a safe workplace could have obviated the need for this prohibition on creating a hostile workplace. But, since the government would not come at a positive duty to create a safe workspace, we're trying again, with this prohibition on creating a hostile working environment. But, sadly, it seems that once again the government will not be actually taking these recommendations seriously and will try to claim credit for doing a job that, in fact, they have barely scratched the surface of.</p><p>But, unlike Senator McAllister, I'm confident that they won't fool anyone at the Women's Safety Summit next Monday. I don't think anyone will buy any of the words that come out of the Prime Minister's mouth when he is talking about women's safety. I'm not sure whether he'll have to check with his wife before he makes that speech. She seems to be the moral barometer when it comes to things pertaining to women. And, of course, I'm sure he won't mention the fact that the front-line services that deal with domestic and family violence are still drastically underfunded. Even after the small increase that was given in the budget, it is still one-quarter of the funding that is needed to meet demand.</p><p>So it's yet more spin from this government. It's either spin or complete silence. We got complete silence on Equal Pay Day from the Prime Minister and from the relevant minister, and now we'll get spin overdrive when it comes to what they are doing for women—but, I'm sorry, you're not fooling anybody.</p> <p class="speaker">Michaelia Cash</p><p>Just very briefly: the <i>Respect@Work</i> report suggested that a new prohibition should be introduced in the Sex Discrimination Act on creating or facilitating a hostile work environment on the basis of sex. The government does not believe this is necessary given that the model work health and safety laws already require that workers are protected from health and safety risks, including psychosocial risks, that can result from a hostile work environment. There is currently a specific obligation under work health and safety laws to provide a safe work environment. Intimidating, hostile, humiliating or offensive environments would be considered a risk under existing work health and safety laws regardless of sex. Inserting an additional prohibition, including as drafted, may be duplicative and actually increase confusion for duty holders and workers.</p><p class="italic">The CHAIR: The question is that opposition amendments (1) and (2) on sheet 1432, moved by leave, be agreed to.</p><p>Question negatived.</p> <p class="speaker">Rachel Siewert</p><p>by leave—I ask that our support for those amendments be noted in <i>Hansard</i>.</p><p class="italic">The CHAIR: Noted.</p> <p class="speaker">Anne Urquhart</p><p>by leave—Given they were our amendments, could you please note that we also supported them.</p><p class="italic">The CHAIR: We will note that as well.</p> <p class="speaker">Larissa Waters</p><p>by leave—I move Greens amendments (1) to (3) on sheet 1433:</p><p class="italic">(1) Schedule 1, page 19 (before line 10), before item 78, insert:</p><p class="italic">77A After paragraph 48(1 ) ( f)</p><p class="italic">Insert:</p><p class="italic">(fa) to inquire into any matter that may relate to systemic acts, omissions or practices that are unlawful under this Act; and</p><p class="italic">(2) Schedule 1, page 20 (after line 8), after item 83, insert:</p><p class="italic">83A After section 48</p><p class="italic">Insert:</p><p class="italic">49 Performance of functions relating to systemic acts, omissions or practices that are unlawful under this Act</p><p class="italic">(1) Subject to subsection (2), the Commission shall perform the function referred to in paragraph 48(1) (fa) when:</p><p class="italic">(a) the Commission is requested to do so by the Minister; or</p><p class="italic">(b) it appears to the Commission to be desirable to do so.</p><p class="italic">(2) The Commission may decide not to inquire into a matter, or, if the Commission has commenced to inquire into a matter, may decide not to continue to inquire into the matter, if:</p><p class="italic">(a) the Commission is satisfied that the matter does not relate to systemic acts, omissions or practices that are unlawful under this Act; or</p><p class="italic">(b) the Commission is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the matter is not warranted.</p><p class="italic">(3) The function of the Commission under paragraph 48(1) (fa) shall be performed by the President, and a reference in this Act or the <i>Australian Human Rights Commission Act 1986</i> to the Commission or to a member of the Commission shall, in relation to the performance of that function, be read as a reference to the President.</p><p class="italic">50 Reports to the Minister</p><p class="italic">If:</p><p class="italic">(a) the Commission has inquired into a matter that may relate to systemic acts, omissions or practices that are unlawful under this Act; and</p><p class="italic">(b) the Commission is of the opinion that the matter relates to systemic acts, omissions or practices that are unlawful under this Act;</p><p class="italic">the Commission may report to the Minister in relation to the inquiry.</p><p class="italic">(3) Schedule 1, page 20 (after line 12), after item 85, insert:</p><p class="italic">85A After subsection 104(1)</p><p class="italic">Insert:</p><p class="italic">(1A) Subsection (1) does not allow the President to delegate any of the President's powers relating to the function of the Commission under paragraph 48(1) (fa) that is to be performed by the President because of subsection 49(4) to a member of the Commission other than:</p><p class="italic">(a) the Commissioner; or</p><p class="italic">(b) the Human Rights Commissioner.</p><p class="italic">85B Subsection 104(2)</p><p class="italic">Omit "The", substitute "Subject to subsection (3), the".</p><p class="italic">85C At the end of section 104</p><p class="italic">Add:</p><p class="italic">(3) If the President delegates any of the President's powers relating to the function of the Commission under paragraph 48(1) (fa) to the Commissioner, subsection (2) does not apply in relation to those powers.</p><p>I'll just speak briefly to that. Addressing sexual harassment issues at the systemic level rather than the individual level will help relieve the burden on individual workers to pursue complaints and to encourage cultural change. This provision, which would allow the Human Rights Commission president, or a delegate of the president if they so delegate, to inquire into matters that relate to systemic acts, omissions or practices, really goes to driving that cultural change and to giving the commission the power to do so of their own volition rather than waiting for an instruction—which would never come—from a minister. It certainly wouldn't come from a minister in this Morrison government. This provision would complement the, sadly, failed amendment to allow representative actions by unions or other representative bodies, again relieving the burden on individuals to avoid harassment or to confront their boss or to run the gauntlet of the legal system on their own. Examining systemic behaviour, practices, procedures and cultures of workplaces can make it safer for everyone, which is exactly why the government should vote for this amendment, but don't hold your breath.</p> <p class="speaker">Jenny McAllister</p><p>Labor supports this amendment on the same basis on which we've moved and supported so many others: that it implements a recommendation of the <i>Respect@Work</i> report—in this case recommendation 19. I don't intend to provide any further remarks. I think that the material set out in the report explains the importance of the recommendation, and it ought to be supported.</p> <p class="speaker">Michaelia Cash</p><p>This amendment seeks to respond to recommendation 19 of the <i>Respect@Work</i>report: to provide the AHRC with a broad function to inquire into any matter that may relate to systemic or unlawful discrimination under any of the federal antidiscrimination laws either under its own initiative or at the request of the minister. This amendment alone would not fully implement recommendation 19, given that it's confined to unlawful acts under the Sex Discrimination Act rather than systemic unlawful discrimination under all federal antidiscrimination acts. This proposal must be considered together with a proposal to change the core functions of the AHRC with a positive duty, accompanied by compliance and enforcement powers. Given the lateness of the hour, I will leave my remarks there.</p><p>Question negatived.</p> <p class="speaker">Rachel Siewert</p><p>by leave—Could you record our support for our amendment, please?</p><p class="italic">The CHAIR: Certainly. Senator Urquhart, the same?</p> <p class="speaker">Anne Urquhart</p><p>by leave—Could you record that Labor supported that amendment as well.</p><p class="italic">The CHAIR: Sure.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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