Bills Digest No. 27, 2022–23
PDF Version [477KB]
Dr Shannon Torrens
Law and Bills Digest Section
24 October 2022
- The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 aims to address sexual harassment in Australian workplaces through further implementing recommendations of the Respect@Work Report. The Bill implements 7 of the recommendations of the Report, with the aim of strengthening the legal and regulatory frameworks in Australia relating to sexual harassment.
- The Respect@Work: Sexual Harassment National Inquiry Report (2020) was delivered following an inquiry conducted by the Australian Human Rights Commission. The Report outlined 55 recommendations to better prevent and respond to sexual harassment in the workplace.
- In April 2021, the Coalition Government delivered A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces. This document responded to all 55 of the AHRC’s recommendations as outlined in the Report.
- In September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 was enacted which sought to implement a number of these recommendations. Concerns were raised by some stakeholders that these amendments did not go far enough in responding to the recommendations in the Report.
- In February 2022, the Coalition Government sought feedback on implementing the outstanding recommendations from the Report that required Commonwealth legislative action.
- The current Government has committed to implementing all outstanding legislative recommendations of the Report and the Bill responds to this commitment.
- Key amendments in the eight-schedule Bill include an express prohibition to protect individuals from hostile workplace environments on the grounds of sex (Schedule 1). Also proposed is a positive duty for employers to take reasonable and proportionate measures to eliminate unlawful discrimination including sexual harassment as far as possible. The AHRC will have compliance powers to enforce this positive duty (Schedule 2).
Purpose of the Bill
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Key issues and provisions
Date introduced: 27
House: House of
1 to 3 on Royal Assent; Schedules 1, 2 (Part 1 and Part 2, Division 1) and 3
– 8 the day after Royal Assent; and Schedule 2 (Part 2, Division 2) 12
months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at October 2022.
The purpose of the Anti-Discrimination
and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the
Bill) is to address sexual harassment in Australian workplaces through
implementing 7 recommendations of the Respect@Work:
Sexual Harassment National Inquiry Report (2020) (the Report).
Specifically, the Bill will:
conduct that subjects a person to a hostile work environment on the grounds of
sex (Schedule 1)
a positive duty on employers to take reasonable and proportionate measures to eliminate
unlawful discrimination on the ground of a person’s sex, including sexual
harassment, as far as possible and allow the Australian Human Rights Commission (AHRC
or the Commission) to monitor or assess compliance with this duty (Schedule 2)
the AHRC to conduct inquiries into systemic unlawful discrimination or
suspected systemic unlawful discrimination (Schedule 3)
representative bodies to progress complaints from conciliation at the AHRC to
the federal courts (Schedule 4)
cost protection provisions for unlawful discrimination proceedings (Schedule 5)
Commonwealth public sector reporting against gender equality indicators
that victimisation can form the basis for a civil action of unlawful
discrimination through amending the Age Discrimination
Act 2004, Disability
Discrimination Act 1992, Racial
Discrimination Act 1975 and Australian Human
Rights Commission Act 1986 (AHRC Act) (Schedule
the period of time between an alleged incident and the lodging of a complaint
in relation to the AHRC President's discretion to terminate a complaint made
under the Age Discrimination Act, Disability Discrimination Act,
and the Racial Discrimination Act (Schedule 8)
the objects clause of the Sex Discrimination
Act 1984 to replace the reference to ‘achieve equality of opportunity
between men and women’ with ‘achieve substantive equality between men and
women’ (Schedule 8) and
the definition of harassment on the grounds of sex in the Sex Discrimination
Act to remove reference to conduct of a ‘seriously’ demeaning nature
In June 2018, the then Coalition Government announced
it would fund the AHRC to undertake a National Inquiry into Sexual Harassment
in Australian Workplaces. Prior to this Inquiry, the AHRC had conducted four
periodic surveys since 2003 on the national experience of sexual harassment (Report,
The Inquiry was conducted by AHRC
Sex Discrimination Commissioner Kate Jenkins and was established to review
on the following:
national survey of the prevalence, nature and reporting of sexual harassment in
Australian workplaces, by sector
workplace-related sexual and sex-based harassment and the use of technology and
social media to perpetrate workplace-related sexual and sex-based harassment
use of technology and social media to identify both alleged victims and
perpetrators of workplace-related sexual harassment
drivers of workplace sexual harassment, including whether:
individuals are more likely to experience sexual harassment due to particular
characteristics including gender, age, sexual orientation, culturally or
linguistically diverse background, Aboriginal and/or Torres Strait Islander
status or disability
workplace characteristics and practices are more likely to increase the risk of
current legal framework with respect to sexual harassment
measures and good practice being undertaken by employers in preventing and
responding to workplace sexual harassment, both domestically and
impacts on individuals and business of sexual harassment, such as mental
health, and the economic impacts such as workers’ compensation claims, employee
turnover and absenteeism, and
to address sexual harassment in Australian workplaces.
The Report was publicly released by the AHRC in March 2020
and outlined 55 recommendations (Report, pp. 40–51). It found that workplace
sexual harassment is ‘prevalent and pervasive: it occurs in every industry, in
every location and at every level, in Australian workplaces.’ (Report,
Through the Report, the AHRC proposes ‘a new approach for
government, employers, and the community to better prevent and respond to
sexual harassment in the workplace and provide leadership and innovation in
addressing this complex and difficult issue.’ (Report,
The Report notes that the new approach is (Report, p. 15):
to enhance outcomes for people experiencing harassment
through a gender and intersectional lens
upon existing legal frameworks to avoid duplication, ambiguity, or undue burden
on employers. It is consistent with the Australian Government’s Deregulation
Agenda of delivering more effective and efficient regulatory frameworks.
Further, the Report notes that there are 5 key areas of
focus which underpin the new approach (Report, p. 15):
legal and regulatory framework
prevention and response
advice, and advocacy.
Coalition Government response to the Report
Coalition Government announced in April 2021 that it ‘has agreed to (in
full, in-principle or in-part) or noted’ the 55 recommendations in the Report
and set out its response to the recommendations in A
Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian
Of the 55 recommendations, 9 were noted by the Coalition
Government, with 4 requiring further consideration (Recommendations 15, 17, 18,
and 27). In the Roadmap, the Coalition Government stated that it would need to
give further consideration to the recommendations to introduce a positive duty
on employers to eliminate unlawful discrimination and to allow the AHRC to conduct
inquiries into systemic unlawful discrimination or suspected lawful
discrimination (Recommendations 17 and 18).
With respect to the recommendation to amend the AHRC
Act to allow representative groups to bring claims to the Federal Court,
the Coalition Government stated that ‘there is an existing mechanism to enable
representative proceedings in the Federal Court’ (Recommendation 23).
Respect at Work Act 2021
In June 2021, the Coalition Government introduced
Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 which
implemented its legislative commitments under the Roadmap and directly
responded to the findings of the Respect@Work Report. The amendments contained
in the Bill were intended to give effect to Report Recommendations 16, 20, 21,
22, 29 and 30 (see the Parliamentary
Library’s Bills Digest for further information on these amendments).
In particular, the Bill proposed to amend the Sex Discrimination
Act, the AHRC Act, and the Fair Work Act 2009
to enhance the effectiveness of Australia’s legal and regulatory frameworks in
preventing and responding to sexual harassment.
The Bill was referred to the Senate Education and
Employment Legislation Committee which tabled
its report recommending the Bill be passed in August 2021. ALP Senators
a dissenting report criticising the Coalition Government for not adopting
all of the recommendations of the Respect@Work Report and ‘[o]f the 6
recommendations it does adopt, the bill presents weakened versions that fail to
capture the purpose of proposed legislative change.’
The Bill passed the Parliament in September 2021 and the Sex Discrimination
and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work
Act 2021) commenced on 11 September 2021.
Implementation of the outstanding recommendations from the
On 14 February 2022, the
former Attorney-General Michaelia Cash released a consultation
paper and survey seeking feedback on the outstanding recommendations from
the Report for changes to Commonwealth legislation (Recommendations 16(c), 17,
18, 19, 23 and 25) which included the proposed introduction of a positive duty
on employers. The consultation process concluded on 18 March 2022, however
the 2022 Federal Election was called on 10 April 2022. Responses from 95
submitters are available
on the website of the Attorney-General’s Department (AGD).
The new Albanese Government committed
to ‘implementing all outstanding legislative recommendations of the
Respect@Work Report, including introducing a positive duty on employers to
prevent sexual harassment in the workplace in the Sex Discrimination Act
Committee for the Selection of Bills
On 27 September 2022, the Senate Standing Committee for
the Selection of Bills recommended that: ‘the provisions of the
Anti-Discrimination (Respect at Work) Bill 2022 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for
inquiry and report by 3 November 2022’ (see Report
No. 5 of 2022).
Further details about the inquiry, including submissions
received by the Committee and public hearing dates, are available on the Inquiry’s
Senate Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not yet considered the Bill (Index
of Bills Considered by the Committee as of 4 October 2022).
Policy position of
At the time of writing, non-government parties and
independents have not commented publicly on the Bill.
Position of major
In March 2022, prior to the introduction of the Bill, the
Law Council of Australia provided a consultation paper on the Respect@Work Report
and options to progress further legislative recommendations. In doing so, the
Law Council said (page 5):
Behaviour constituting harassment and discrimination in the
workplace is unacceptable but remains unfortunately commonplace. The Law
Council is strongly supportive of the Australian Government’s efforts to drive
necessary change through responding to and implementing the recommendations of
the Sex Discrimination Commissioner’s Respect@Work: Sexual Harassment National
The Law Council has since made a submission
to the Senate Legal and Constitutional Affairs Legislation Committee inquiry,
specifically addressing the Bill.
commended the introduction of the Bill. Kate Jenkins, Australia’s Sex
Discrimination Commissioner who conducted the Report, said:
The right of workers to be free from sexual harassment is a
human right, a workplace right and a safety right. This legislative reform will
create a regulatory environment in Australia that is key to the realisation of
that right for all Australian workers.
These important reforms are timely and should be considered
by state and territory governments to achieve greater harmonisation of
sexual harassment legislation as part of any upcoming legislative
reviews, consistent with our recommendation in our Respect@Work report.
In addition to the critical focus on prevention and cultural
change that will be brought about by a positive duty, increased clarity and
consistency in the operation of sexual harassment laws —including across
federal, state and territory anti-discrimination legislation — will help make
the complaints process more accessible for individuals.
The Australian Council of Trade Unions (ACTU) has
action on Respect@Work, with ACTU President Michele O’Neil noting:
This is such an important and long overdue legislative change
as sexual harassment at work is rife in Australia with women having a 2 in 3
chance of experiencing it in a current or former workplace.
Employers having an obligation to prevent sexual harassment
is essential to making workplaces safe for everyone.
For workers in the retail and fast-food industry, many of
them teenagers, customers are the biggest perpetrators of sexual harassment.
It's welcome to see the Albanese Government taking steps to hold employers
accountable for also preventing this type of harassment.
We will not have gender equality while women are having to
leave jobs because they feel unsafe.
Council of Australia (DCA) made a submission to the Senate Legal and
Constitutional Affairs Legislation Committee in response to the Bill, noting:
We welcome the changes proposed in the Anti‑Discrimination and Human
Rights Legislation Amendment (Respect at Work) Bill 2022 and commend the
Government’s efforts in taking action in this area.
On systemic inquiries into unlawful discrimination, DCA
DCA supports the new provision in the AHRC Act to provide the
AHRC with a broad inquiry function to inquire into systemic unlawful
discrimination or suspected systemic unlawful discrimination (recommendation 19
of the Respect@Work Report). We believe these inquiry powers are important for
addressing systemic unlawful discrimination without relying on individual
Nursing and Midwifery Federation (ANMF) also made a submission to the
Senate Committee Inquiry into the Bill. On the role of the AHRC in relation to
the positive duty and its enforceability, the ANMF stated (p. 4):
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. The ANMF echoes the recommendations of the
ACTU to prescribe the guidelines by regulation and ensure they are subject to
regular review and update to ensure they remain relevant and responsive to
current issues and circumstances.
Group (an employers’ organisation), also made a submission
to the Senate Committee inquiry. While supporting the policy intent behind the
Bill, the Ai Group criticised a number of aspects of the Bill, including:
The Bill contains insufficient safeguards in respect of the
AHRC’s broad inquiry functions in respect of systemic discrimination and
requires further clarification on the rights of individuals in respect of the
Memorandum (EM) to the Bill advises that the Bill will not have a financial
impact on the Commonwealth (p. 11).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth),
the Government has assessed the Bill’s compatibility with the human rights and
freedoms recognised or declared in the international instruments listed in
section 3 of that Act. The Government considers that the Bill is compatible (EM,
pp. 12, 19).
notes that the Bill ‘promotes the protection of human rights and, to the
extent that it may operate to limit human rights, the limitations are
reasonable, necessary and proportionate to achieve legitimate objectives.’ (p.
The Bill engages the following rights (EM,
Parliamentary Joint Committee on Human Rights
had no comment on the Bill (p. 1).
Key issues and provisions
Positive duty obligation on employers
Schedule 2 of the Bill amends the Sex
Discrimination Act to insert new Part IIA which creates a positive duty for
employers or persons conducting a business to take reasonable and proportionate
measures to eliminate sex discrimination, sexual harassment and victimisation,
as far as possible.
This reflects the Government’s intention to implement recommendation
17 of the Report:
Recommendation 17: Amend the Sex Discrimination Act to
introduce a positive duty on all employers to take reasonable and proportionate
measures to eliminate sex discrimination, sexual harassment and victimisation,
as far as possible. In determining whether a measure is reasonable and
proportionate, the Act should prescribe the factors that must be considered
including, but not limited to:
- the size of the person’s business or operations
- the nature and circumstances of the person’s business or
- the person’s resources
- the person’s business and operational priorities
- the practicability and the cost of the measures
- all other relevant facts and circumstances.
(Report, p. 44).
Law firm Clayton
Utz noted the importance of implementing the Report’s recommendation to
introduce a positive duty to prevent sexual harassment:
It is clear that the existing legal framework has not been
effective at eliminating sexual harassment in the workplace. Despite many
organisations having comprehensive policies and procedures on sexual
harassment, and reinforcing these through staff training, workplace sexual
harassment remains pervasive. There is often a disconnect between policies and
statements of intent and what occurs in practice on the ground. The positive
duty aims to tackle this by requiring a nuanced approach to be taken in
response to an organisation’s specific risk factors relevant to sexual
Proposed section 47C (at item
8 of Schedule 2) requires an employer or a person conducting a
business (the duty holder) to take reasonable and proportionate measures to
eliminate, as far as possible, certain types of conduct being engaged in by
either the duty holder or their employees, workers, and agents. The term
'reasonable and proportionate' is not defined and according to the EM will
apply differently to each duty holder depending on their particular
circumstances (EM, p. 37).
The conduct covered by proposed section 47C
includes existing conduct defined in the Sex Discrimination Act
that prohibits unlawful discrimination in the workplace (proposed paragraph
47C(2)(a)), as well as:
harassment, or harassment on the grounds of sex, that is unlawful under section
28B (proposed paragraph 47C(2)(b))
that results in a person being subjected to a hostile workplace environment
under proposed section 28M, which is inserted by item 5 of Schedule
1 to the Bill and is discussed below (proposed paragraph 47C(2)(c))
of victimisation that relate to the conduct mentioned in proposed paragraphs
Further, the Bill will provide the AHRC with compliance
powers to enforce the duty. This responds to Recommendation 18 of the Report:
Recommendation 18: The Commission be given the function of
assessing compliance with the positive duty, and for enforcement. This may
include providing the Commission with the power to:
assessments of the extent to which an organisation has complied with the duty,
and issue compliance notices if it considers that an organisation has failed to
- enter into agreements/enforceable undertakings with the
- apply to the Court for an order requiring compliance
with the duty. (Report, p. 44)
Proposed section 35K (at item 23 of Schedule
2) provides that proposed section 47C is enforceable under Part 6 of
Powers (Standard Provisions) Act 2014, which creates a framework for
accepting and enforcing undertakings relating to compliance with specified
provisions. This means that the President of the AHRC (or their delegate) may
accept an undertaking relating to compliance with proposed section 47C, may publish
such an undertaking on the AHRC’s website, and may apply to the Federal Court
or the Federal Circuit and Family Court of Australia (FCFCA) for orders to
enforce the undertaking. If the Court is satisfied that the person has breached
the undertaking it may make orders directing the person to comply with the
undertaking, make a payment to the Commonwealth or a person who has suffered
loss of damage as a result of the breach, or any other order the Court
considers appropriate (subsection 115(2) of the Regulatory Powers (Standard
Proposed section 35A (at item
16 of Schedule 2) confers the following functions on the AHRC
aimed at assisting duty holders in complying with their obligations:
and publishing guidelines relating to complying with the positive duty in
relation to sex discrimination (proposed paragraph 35A(a))
an understanding and acceptance, and public discussion on the topic (proposed
research and educational programs (proposed paragraph 35A(c)) and
incidental or conductive to the performance of the above functions (proposed
The EM notes these types of functions are not new to the
AHRC and ‘are designed for the Commission to educate businesses about their
obligations under the positive duty, and to work cooperatively with them to
build their capacity to comply’ (p. 48). The EM explains: ‘Guidelines would be
a valuable compliance mechanism in assisting duty holders to understand the
nature of their obligations under the positive duty, and the measures they must
take to achieve compliance.’ (p. 48).
Further, the Bill will provide the Commission with a ‘full
suite of compliance powers to enforce the positive duty’, though these powers
won’t commence until 12 months after Royal Assent of the Bill (EM, pp. 47, 49).
Pursuant to proposed section 35B (item 23 of
Schedule 2), the AHRC will be able to inquire into a person’s compliance
with the positive duty in relation to sex discrimination if the Commission
reasonably suspects that the person is not complying. The Commission must
notify the person that an inquiry has been commenced and give them an
opportunity to make submissions (proposed section 35C). Before making a
finding, the Commission must give the person a reasonable opportunity to make
written or oral submissions (proposed subsection 35C(2)).
If, as a result of an inquiry into a person’s compliance
with the positive duty, the Commission finds that a person is not complying,
the Commission must notify the person in writing of its findings and may notify
the person of any recommendation of the Commission for preventing repetition or
continuation of the failure to comply (proposed
Further, the AHRC President may give the person a written compliance
notice (proposed subsection 35F(1)). The EM states (p. 56):
The terms of the compliance notice should provide the
recipient with practical and measurable steps to achieve compliance with the
positive duty. For example, the compliance notice may require the person to
remove specific offensive materials from the workplace and provide bespoke
training to managers on sexual harassment within 21 days.
A person who is subject to a compliance notice can seek
AHRC reconsideration of the decision to issue the notice (proposed
subsection 35G) and/or review of that decision by the Federal Court or the FCFCA
(proposed subsection 35H).
If the compliance notice is not complied with the
Commission can apply to the Federal Court or the FCFCA for
an order. The court may make an order directing the person to comply with the
notice or any other order it considers appropriate (proposed section 35J).
Schedule 2 also amends the Inspector-General
of Intelligence and Security Act 1986 to allow the
Inspector-General of Intelligence and Security, as opposed to the AHRC, to
inquire into any matters that may relate to compliance by intelligence agencies
with the positive duty in relation to sex discrimination (items 26 to 30).
Impact on employers and businesses
The Bill will impose additional requirements on employers
and businesses, including the creation of the positive duty for employers and
businesses to take reasonable and proportionate measures to eliminate unlawful discrimination.
This positive duty contributes to a shift in legislation responding to sex
discrimination in the workplace from preventative to proactive measures.
Law firm Herbert
Smith Freehills commented that these amendments proposed by the Bill
reflect an important development to address these issues more actively:
Some of these amendments, such as the introduction of the
positive duty, are a long-time coming. Since the Respect@Work report was
released in March 2020, we have seen best practice employers focussing on
continuously improving their systems and processes and challenging the status
quo, to minimise the risk that sexual harassment and other unlawful
discrimination will arise in their workplaces. Increasingly, we are seeing
employers not just address this as a 'compliance' or legal issue and are seeing
these steps as critically important to providing a safe workplace with a
positive and productive culture to employees and others who work in their
workplaces. Such actions are also increasingly being seen as crucial to
discharging an employer's [environmental, social, and governance] ESG
The Bill will require employers and businesses to put
systems into place to respond to the changes. As noted by the law firm Ashurst:
In light of the proposed amendments at both a state and
federal level, employers should be taking positive steps to ensure that their
processes and systems are directed at both preventing and responding to sexual
harassment. These changes should go beyond updating policies and procedures and
online compliance training to take account of both legislative change and
compliance, and changing societal views.
Piper has said that employers will have further obligations because of the
amendments and the AHRC will have increased powers:
These changes are a significant enhancement of employers’
obligations and increase in the powers of the AHRC to achieve compliance. These
reforms have been introduced in response to the acknowledgement that, to date,
Australian workplaces have not sufficiently addressed sex discrimination,
sexual harassment and victimisation. It is unlikely that the steps historically
taken, and relied on, by employers to date, such as annual training for all
staff and workplace policies, are going to be sufficient to meet these new
Lessons about what these reforms will mean can be taken from
the Report and from other legislative frameworks that require employers to take
“reasonable steps” to achieve workplace outcomes.
has said that the positive duty will require employers to make a number of
Given these changes, and particularly the new positive duty
on employers to eliminate unlawful sex discrimination, it is critical that
employers consider what is being done within their business to address and
eliminate unlawful sex discrimination. At the very least, the new positive duty
will likely require employers to:
have clear policies in place, which make it clear that sex
discrimination (including sexual harassment) is against the law and that
employees may face disciplinary action, up to and including the termination of
their employment, for breaches of such policies;
ensure that employees are aware of the policies and receive appropriate
ensure that any complaints about unlawful sex discrimination are dealt
Department has estimated that the average annual regulatory cost associated
with the enforceable positive duty is $226.4 million. This figure relates to
start-up costs to businesses and updating policies and training materials.
Prohibition on conduct
that results in a hostile workplace environment on the basis of sex
Schedule 1 of the Bill amends the Sex
Discrimination Act to include an express requirement to protect people from
hostile workplace environments on the grounds of sex. For conduct to be caught
by the amendments proposed in Schedule 1, it does not need to be directed at a
specific person but rather conduct that results in an offensive, intimidating
and humiliating environment for people of one sex.
This is intended to implement recommendation 16(c) of the
Recommendation 16: Amend the Sex Discrimination Act to
or facilitating an intimidating, hostile, humiliating or offensive environment
on the basis of sex is expressly prohibited. (Report, p. 43)
Inserted into Division 3 of Part II of the Sex
Discrimination Act, proposed subsection 28M(1) (at item 5 of Schedule
1) provides that it is unlawful for a person to subject another person to a
workplace environment that is hostile on the grounds of sex.
In outlining what it means for a person (the first person)
to subject another person (the second person) to a hostile workplace
environment, the Bill applies a reasonable person test whereby a reasonable
person ‘would have anticipated the possibility of the conduct resulting in the
workplace environment being offensive, intimating or humiliating to a person of
the sex of the second person’ (proposed subsection 28M(2)).
The conduct that results in a hostile workplace
environment must relate to either the sex of the person, a characteristic that
appertains to persons of that sex or a characteristic that is imputed to a
person of that sex (proposed subparagraphs 28M(2)(c)(i)-(iii)).
On the reasonable person test, the EM notes (p. 25):
The ‘reasonableness’ should be considered by reference to the
conduct of the first person, rather than their intention or the way the conduct
was actually received by the second person. However, the requirement to
consider what was reasonable ‘having regard to all the circumstances’ can
provide a mechanism to allow for particular subjective considerations or
Circumstances that are taken into account include the
seriousness of the conduct; whether it was continuous or repetitive; the role,
influence or authority of the person engaging in the conduct; and other
relevant circumstances (proposed paragraphs 28M(3)(a)-(d)).
Proposed section 8A (at item 4 of Schedule
1) provides that a workplace environment ‘may be offensive, intimidating or
humiliating to a person on the ground of sex’ if at least one of the reasons
for the environment meeting that description is by reason of:
sex of the person (proposed paragraph 8A(a))
characteristic that pertains to persons of a particular sex (proposed
paragraph 8A(b)) or
characteristic generally imputed to person of a particular sex (proposed
even if that is not the dominant or substantial reason. As
the EM states (p. 23):
This means that a person subjects another person to a hostile
workplace environment if they engage in conduct that is offensive, intimidating
or humiliating by reason of the person’s sex and another matter (or matters), regardless
of whether sex was the dominant or substantial reason for their engagement in
the conduct. [emphasis added]
The EM further provides an illustrative example of how proposed
section 8A is intended to operate (pp. 23-24):
Craig is the owner and head chef of a small restaurant. Craig
regularly makes racist jokes about some of the restaurant’s customers,
including insulting comments about their physical appearance. Craig also
displays pornographic images of women in the kitchen area and requires the
female front-of-house staff to wear revealing uniforms. One of the female
staff, Uma, lodges a complaint in the Commission on the basis that Craig is
subjecting her to a hostile workplace environment (as defined in subsection
28M(2)). The operation of section 8A means that Uma only needs to establish
that the workplace environment was offensive, intimidating or humiliating by
reason of her sex (or related characteristics), even if there were other
matters, such as her race or ethnicity, that contributed to this outcome.
Costs protection provisions
Schedule 5 inserts a costs protection provision
into the AHRC Act with the objective of providing greater certainty for
applicants and respondents in terms of costs.
Currently, while federal courts have a broad discretion in
deciding how to award costs in unlawful discrimination proceedings, they
generally follow the practice of awarding costs following the event. The EM
notes that this ‘generally means that the unsuccessful party is required to pay
the costs of the successful party’ (EM, p. 86).
As noted by the Attorney-General, Mark Dreyfus, in his second
reading speech the Government’s justification for the changes to costs
The Respect@Work report heard that concerns about adverse
cost orders deter applicants from seeking to resolve complaints through the
courts. Cost reforms will give both applicants and respondents greater
certainty in terms of the costs they may face while not impacting their access
to legal representation.
The model proposed in the Bill is different from that
recommended by the AHRC in its Report:
Recommendation 25: Amend the Australian Human Rights
Commission Act to insert a cost protection provision consistent with
section 570 of the Fair Work Act 2009 (Cth). (Report, p. 45)
As noted in the EM (p. 86), the Report:
… proposed an amendment based on section
570 of the Fair Work Act. This model provides that costs may only be ordered
against a party if the court is satisfied that the party instituted the
proceedings vexatiously or without cause, or if the court is satisfied that a
party’s unreasonable act or omission caused the other party to incur costs.
However, the Government has stated that the
model adopted is one supported by the AHRC in 2021, with the
The cost reform in this bill is the model supported by the
Australian Human Rights Commission in their 2021
Free and Equal Position Paper [page 201], and
these reforms will apply to all applications under Commonwealth
anti-discrimination law. The approach balances the need for certainty and the
clear impact costs can have on applicants taking action in the courts against
the unintended consequences of costs reform, such as impacting access to legal
The EM explains that the Bill would adopt a ‘cost
neutrality’ approach in alignment with the AHRC’s 2021 Paper, noting ‘this
diverges from the approach under section 570 of the Fair Work Act because it
allows the court to consider matters broader than only the conduct of the
parties.’ (p. 86).
The Bill inserts proposed subsection 46PSA(1) into
the AHRC Act (item 3 of Schedule 5) which provides that
the default position is that in unlawful discrimination proceedings each party
will bear their own costs. However the courts will have the discretion to
default from this position and make orders as to costs where it is considered
just to do so (proposed subsection 46PSA(2)).
Factors that must be considered by the courts in
determining whether to make a costs order include (proposed subsection
financial circumstances of each of the parties
conduct of the parties
any party has been wholly unsuccessful
any party has made an offer in writing to another party to settle and
the subject matter of the proceedings involves an issue of public importance.
Notably, in a representative application if the court
makes a costs order, it can only be made against the representative body, not
the individual/s on behalf of whom the application was made (proposed
Items 4–10 of the Bill amend the Federal Circuit and
Family Court of Australia Act 2021 and the Federal Court of
Australia Act 1976 to provide that proposed section 46PSA of the
AHRC Act applies to unlawful discrimination proceedings in the Federal
Circuit and Family Court and in the Federal Court.
Overview of other amendments
AHRC inquiries into systemic unlawful discrimination
Schedule 3 amends the AHRC Act to allow the AHRC
to inquire into, and report on, systemic unlawful discrimination or suspected
systemic unlawful discrimination (proposed section
35L, at item 8 of Schedule 3). The inquiries can be
requested by the Minister or undertaken when the AHRC believes it is desirable
to do so (proposed section 35M, at item 8 of Schedule 3).
This is intended to implement recommendation 19 of the
Recommendation 19: Amend the Australian Human Rights
Commission Act to provide the Commission with a broad inquiry function to
inquire into systemic unlawful discrimination, including systemic sexual
harassment. Unlawful discrimination includes any conduct that is unlawful under
the federal discrimination laws. The Commission should be given powers to
- the giving of information
- the production of documents
- the examination of witnesses
- with penalties applying for non-compliance, when
conducting such an inquiry. (Report, p. 44).
Schedule 4 amends the AHRC Act to allow
representative bodies to progress a complaint on behalf of affected persons
from conciliation at the AHRC to the federal courts. The amendments are
intended to provide support to people experiencing harassment and
discrimination to navigate the legal system and resolve their complaints (EM,
These amendments are intended to implement recommendation
23 of the Report:
Recommendation 23: Amend the Australian Human Rights
Commission Act to allow unions and other representative groups to bring
representative claims to court, consistent with the existing provisions in the
Australian Human Rights Commission Act that allow unions and other
representative groups to bring a representative complaint to the Commission.
(Report, p. 45).
As noted by the previous Coalition Government in its
response to the Report, ‘there is an existing mechanism to enable
representative proceedings in the Federal Court of Australia under Part IVA of
Court of Australia Act 1976.’ (Roadmap,
p. 13) However, the EM outlines that these mechanisms are ‘rarely used’ because
of the ‘technical and complex requirements which differ from the requirements
for bringing representative complaints to the Commission’
(EM, pp. 79– 80).
Item 1 of Schedule 4 inserts a definition of
representative application into subsection 3(1) of the AHRC Act,
that distinguishes representative proceedings under Part IVA of the Federal
Court of Australia Act from representative proceedings under the AHRC
Act. It provides that a representative application is:
an application under subsection 46PO(1) that is made on
behalf of at least one person other than the person making the application, but
does not include an application that commences a representative proceeding
in accordance with Part IVA of the Federal Court of Australia Act 1976
As set out in the EM, this definition ‘explicitly excludes
an application that commences a representative proceeding, known as a class
action, in accordance with Part IVA of the [Federal Court of Australia Act]
FC Act. In doing so, this Bill does not interfere with the existing and
separate mechanisms for class actions under the FC Act’ (p. 80).
Smith Freehills argued that the amendments may lead to the risk of
increased litigation in this area and the potential for a lack of transparency
in sexual harassment and unlawful discrimination situations:
On the other hand, the proposed introduction of a specific
mechanism for class actions for unlawful discrimination in the Federal courts
does give rise to the risk that there may become increasing litigation in this
space. However, it is difficult to see how such proceedings will be practical
or effective in workplace discrimination matters which are typically highly
individualised. The amendment may also have a negative impact on the trend
amongst employers towards transparency in relation [to] sexual harassment and
unlawful discrimination, given the heightened litigation risk which that
transparency may bring. This would be unfortunate given the considerable
progress which has been made towards accountability and transparency in recent
Commonwealth public sector reporting
Schedule 6 amends the Workplace Gender
Equality Act 2012 to require Commonwealth public sector organisations
with 100 or more employees to report annually against six gender equality
indicators to the Workplace Gender Equality
Agency. This is to ensure there is a robust understanding of gender inequality
in Australian workplaces and bring the Commonwealth public sector in line with
the private sector (EM, p. 93).
This is intended to implement recommendation 43 of the
Recommendation 43: The Australian Government:
the Workplace Gender Equality Act 2012 to require public sector organisations
to report to the Workplace Gender Equality Agency on its gender equality
the Workplace Gender Equality Agency adequately to meet these expanded
reporting obligations (p. 49).
Victimisation as a basis for a civil action
Schedule 7 amends the AHRC Act, Age
Discrimination Act, Disability Discrimination Act and Racial
Discrimination Act to clarify that victimisation is a basis for a civil
action of unlawful discrimination under the Age Discrimination Act, Disability
Discrimination Act or the Racial Discrimination Act, in addition to
a criminal complaint. These amendments mirror the amendments made to the Sex
Discrimination Act by the Respect at Work Act 2021 (see pages 30–31,
Digest for further information).
Changes to objects clause
Schedule 8 amends the objects clause of the Sex
Discrimination Act to replace the reference ‘to achieve, so far as
practicable, equality of opportunity between men and women’ with ‘to achieve,
so far as practicable, substantive equality between men and women’.
This amendment is intended to implement Recommendation
16(a) of the Report:
Recommendation 16: Amend the Sex Discrimination Act to
- the objects include ‘to achieve substantive equality
between women and men’ (Report, p. 43).
The Sex Discrimination
and Fair Work (Respect at Work) Amendment Act 2021 amended the objects
clause of the Sex Discrimination Act to include the object that is now
sought to be amended. As noted in the Bills
Digest (pp. 20–22), some stakeholders criticised the adoption of formal,
rather than substantive equality, in the objects clause while some preferred
the drafting introduced by the Respect at Work Act 2021.
Currently under subsection 46PH of the AHRC Act, the
President may terminate a complaint made under the Age Discrimination Act,
Disability Discrimination Act, or the Racial Discrimination Act
if the complaint was lodged more than 6 months after the relevant alleged act
took place. Item 1 of Schedule 8 will change this so that the
discretion to terminate a complaint on this basis applies where a complaint is
lodged more than 24 months after the relevant alleged act. These amendments
mirror the amendments made to the Sex Discrimination Act by the Respect
at Work Act 2021 (see p. 30, Bills
Digest for further information).
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