+61731186161 [email protected]

Purpose of the Bill

The purpose of the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) is to enhance the effectiveness of Australia’s legal and regulatory frameworks in preventing and responding to sexual harassment,[1] by:

  • amending the Fair Work Act 2009 (the FW Act) to:
    • ensure that the existing anti-bullying regime in the FW Act applies to sexual harassment in the workplace, so the Fair Work Commission (FWC) can make a ‘stop sexual harassment order’ to prevent future harm, provided the FWC is satisfied that sexual harassment has occurred and there is a risk of the harassment occurring again
    • expressly provide that sexual harassment is conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable and
    • ensure that the existing entitlement to compassionate leave in the FW Act enables an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage and
  • amending the Sex Discrimination Act 1984 (the SDA) to:
    • create a new object clause to make it clear that an object of the SDA is to achieve, so far as practicable, equality of opportunity between men and women
    • insert new provisions that expressly provide that it is unlawful to harass a person on the ground of their sex (sex-based harassment) and
    • expand the application of the SDA in relation to workplace sexual harassment by applying the new provisions to all workers and workplaces
    • make the accessorial liability provisions apply to the conduct of a person who caused, instructed, induced, aided, or permitted sexual or sex-based harassment by another
    • clarify that a person who is victimised as a result of making a complaint (or taking related steps) under the SDA can initiate civil action for unlawful discrimination in the Federal Court or Federal Circuit Court
  • amending the Australian Human Rights Commission Act 1986 (the AHRC Act) to:
    • clarify that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint under the SDA and
    • amend the discretionary grounds on which a complaint may be terminated by the President of the AHRC on the grounds of time from the current six months after the alleged unlawful conduct took place, to 24 months after the alleged unlawful conduct took place.[2]

Structure of the Bill

The Bill is divided into two Parts. Part 1 contains the substantive amendments. Part 2 contains application and transitional provisions.

Background

Between 2013 and 2018, the Australian Human Rights Commission (AHRC) conducted four surveys on the experience of sexual harassment. The surveys showed a significant increase in the experience of sexual harassment in the workplace, with almost two in five women and one in four men experiencing sexual harassment in the workplace in the previous five years.[3] The AHRC reported in September 2018:

One in five people who were sexually harassed at work said the behaviour was common (20%) in their workplace.

[…]

Almost one in five people who made a formal report or complaint were labelled as a troublemaker (19%), were ostracised, victimised or ignored by colleagues (18%) or resigned (17%).[4]

In June 2018 the Federal Government announced it would fund the AHRC to undertake a National Inquiry into Sexual Harassment in Australian Workplaces.[5] The product of this inquiry was the [email protected] Report (the Report) publicly released by the AHRC in March 2020.[6] The Report found that workplace sexual harassment is ‘prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces’.[7] It also highlighted the cost to Australian employers through:

  • lost productivity
  • staff turnover
  • negative impact on workplace culture
  • resources associated with responding to complaints, litigation and workers’ compensation
  • reputational damage.[8]

The [email protected] report outlines the context in which sexual harassment occurs and current legal and regulatory systems and makes recommendations for improvements to the existing legal arrangements for the prevention and reporting of sexual harassment. The 55 recommendations made by the report cover many different areas, including the need to improve education around respectful relationships, the introduction of a Workplace Sexual Harassment Council and improved methods of reporting. The Report recommended legislative amendments to simplify and clarify the overarching legal frameworks to ensure that employers and workers can effectively address sexual harassment in the workplace.[9]

Recommendations actioned by the Bill

In April 2021, the Federal Government announced that it would adopt ‘in full, in-principle or in-part’ all of the 55 recommendations set out in the Report.[10] The Government set out its response to the Report in the Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (the Response). The Government notes that the Bill gives effect to legislative amendments set out in the Response and implements Report Recommendations 16, 20, 21, 22, 29, and 30.[11] Table 1 below sets out the Recommendations relevant to the provisions contained in the Bill.

Table 1: Report recommendations relevant to the Bill

NumberReport RecommendationNotes
16Amend the SDA to ensure:the objects include ‘to achieve substantive equality between women and men’sex-based harassment is expressly prohibitedcreating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex is expressly prohibitedthe definition of ‘workplace participant’ and ‘workplace’ covers all persons in the world of work, including paid and unpaid workers, and those who are self-employedthe current exemption of state public servants is removed.Recommendation 16(a) is reflected in item 31.

Recommendation 16(b) is reflected in item 60 and related items.

Recommendation 16(d) is reflected in proposed section 28AB and item 63 and related items.

Recommendation 16(e) is reflected in items 32-37, 40 and 48 and related items.
20Amend section 105 of the SDA to ensure that it applies to sexual harassment.Reflected in item 86 and proposed section 28AA and related items.
21Amend the AHRC Act to make explicit that any conduct that is an offence under section 94 of the SDA can form the basis of a civil action for unlawful discrimination.Reflected in items 1-2, 77, 8889, and proposed subsection 47A(1).
22Amend the AHRC Act so that the President’s discretion to terminate a complaint under the SDA on the grounds of time does not arise until it has been 24 months since the alleged unlawful discrimination took place.Reflected in item 3.
29Introduce a ‘stop sexual harassment order’ equivalent to the ‘stop bullying order’ into the FW Act. This should be designed to facilitate the order’s restorative aim.Reflected in items 4-5, 11-28.
30Amend section 387 of the FW Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable.Reflected in item 10.

Source: Australian Human Rights Commission (AHRC), ‘[email protected]: National Inquiry into Sexual Harassment in Australian Workplaces’, AHRC, 29 January 2020; Australian Government, ‘Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’, 8 April 2021 and Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

The Government agreed unconditionally with all the above recommendations except for Recommendations 16 and 29.[12] In relation to Recommendation 16 the Government noted its in‑principle agreement but stated it:

  • supports equality of opportunity and the express prohibition of sex-based harassment and
  • will amend the SDA to ensure greater alignment with Work Health and Safety (WHS) laws and to make the system for addressing sexual harassment in the workplace easier for employers and workers to understand and navigate.[13]

In relation to Recommendation 29 the Government noted its in-principle agreement but stated it would ‘clarify that a ‘stop bullying order’ is available in the context of sexual harassment’, rather than introduce a new order.[14]

Committee consideration

Senate Education and Employment Legislation Committee

The Bill was referred to the Senate Education and Employment Legislation Committee (the Committee) for inquiry and report. The Committee recommended:

  • the Australian Government defer the commencement of the amendments that extend the anti‑bullying jurisdiction of the Fair Work Commission (FWC) until no earlier than two months after Royal Assent
  • the Australian Government make further legislative amendments to clarify that victimisation under the Disability Discrimination Act 1992Racial Discrimination Act 1975, and the Age Discrimination Act 2004, can also form the basis of a civil action for unlawful discrimination and
  • the Bill be passed.[15]

In their dissenting report, the Opposition Senators stated that the Bill implements six of the 55 recommendations of the 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’.[16] The Opposition Senators made 10 Recommendations, including that the Bill be amended to:

  • adopt recommendations 17 to 19 of the Report, to impose a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible; to give the AHRC the function of assessing compliance with the positive duty, and for enforcement; and provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment[17]
  • include a clear prohibition on sexual harassment in the FW Act and a new complaints process in the Fair Work Commission which is available to workers who experience current or historical sexual harassment[18]
  • implement Recommendations 23 and 25 of the Report, to amend the AHRC Act to allow representative groups to bring representative claims to court and to insert a cost protection provision consistent with section 570 of the FW Act[19]
  • broaden stop sexual harassment orders to cover sex-based harassment extending to ‘any circumstances connected with work’[20]
  • accurately implement Recommendation 16(a) of the Report by amending the objects of the SDA to include ‘to achieve substantive equality between women and men’[21]
  • amend the ‘seriously demeaning’ test so that ‘it is consistent with existing legal standards’ and objects of the Report recommendations, and the Bill ‘be amended to adopt Recommendation 16(b) and 16(c)’ of the Report[22] and
  • provide 10 days paid family and domestic violence leave in the national employment standards.[23]

The Opposition Senators also recommended that the Government prepare amendments to implement in full the remaining recommendations of the Report that are not addressed by the Bill and undertake the necessary treaty implementation processes required to implement the International Labour Organization (ILO) Violence and Harassment Convention, 2019 (No. 190), consistent with Recommendation 15 of the Report.[24]

In their additional comments, the Australian Greens Senators stated that the Government:

received the [email protected] report in March 2020; so it is disappointing to see that, nearly 18 months later, its legislative response misses the opportunity to implement the recommendations in full. Indeed, it ignores one of the core recommendations to put the onus on employers to maintain a safe workplace, rather than on vulnerable workers and victims to take action against harassers.[25]

The Greens made nine recommendations, as set out below:

  • amending the new objective in proposed paragraph 3(e) of the SDA (at item 31) to be: ‘achieve substantive gender equality’, to better reflect the recommendations of the Report[26]
  • replacing ‘seriously demeaning’ in proposed section 28AA of the SDA (at item 60) with ‘demeaning’ to ‘bring the sex-based harassment offence in line with other offences’ under the SDA[27]
  • allow the Fair Work Commission to make ‘stop sex-based harassment orders’, as well as stop sexual harassment orders[28]
  • clarify that sex-based harassment can amount to a valid reason for dismissal[29]
  • impose positive duties on employers in order to prevent sexual harassment, sex-based harassment and discrimination[30]
  • extend the AHRC’s powers so it can initiate investigations of workplaces and undertake systemic sectoral reviews[31]
  • provide for representative claims to be made by unions and other organisations on behalf of members who have experienced sexual harassment, sex-based harassment and discrimination[32]
  • amend the AHRC Act to protect workers against prohibitive costs orders[33] and
  • include ‘gender identity’ and ‘sex characteristics’ as protected attributes under the FW Act.[34]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comments on the Bill.[35]

Policy position of non-government parties/independents

The Opposition has indicated its support for the Report Recommendations in their entirety, with the Opposition leader stating the ALP would be ‘examining any legislation that the Government puts forward and comparing it with the recommendations made’.[36] As noted above, the Opposition has recommended amendments to the Bill.

Independent MP Zali Steggall appears to support legislative amendments to the SDA aimed at ensuring that sexual harassment is illegal in all circumstances, having introduced a Private Members Bill (the Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill 2021) which sought to amend the SDA in a manner consistent with recommendation 16 of the Report.[37] However, at the time of writing, her position on the measures contained in the Bill was not clear.

Centre Alliance MP Rebekha Sharkie has indicated support for legislation enacting some or all the Report’s recommendations.[38] However, at the time of writing, her position on the measures contained in the Bill was not clear.

The Australian Greens have indicated support for legislation implementing the Report’s recommendations.[39] As noted above, the Australian Greens have recommended amendments to the Bill and made wider recommendations relating to implementation of other recommendations in the Report.

At the time of writing the position of other non-government parties and independents on the precise measures contained in the Bill could not be determined.

Position of major interest groups

Employer and business groups are largely supportive of the Bill.[40] Where appropriate, their positions on specific issues contained in the Bill are examined below.

Trade unions, women’s groups, legal service providers and legal professional bodies are largely supportive of most measures in the Bill, whilst criticising the Bill for not fully implementing all relevant Report recommendations.[41] Where appropriate, their positions on specific issues contained in the Bill are examined below.

Financial implications

According to the Explanatory Memorandum, the Bill will have no financial impact on the Commonwealth at this time.[42]

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.[43]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights made no comment on the Bill.[44]

Key issues and provisions: amendments to the Fair Work Act 2009

The Bill proposes to amend the FW Act to:

  • ensure that the existing anti-bullying regime in the FW Act applies to sexual harassment in the workplace and that sexual harassment is conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable and
  • ensure that the existing entitlement to compassionate leave in the FW Act enables an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage.

New miscarriage leave entitlement

In December 2018 the Senate Select Committee on Stillbirth Research and Education released the Stillbirth Research and Education Report (Stillbirth Report).[45] Relevantly to the Bill, the Stillbirth Report recommended that the Government amend the FW Act and the National Employment Standards to ensure:

provisions for stillbirth and miscarriage are clear and consistent across all employers, and meet international best practice such as those contained in the Ausgrid Enterprise Agreement[46] (emphasis added).

The Ausgrid enterprise agreement entitlement cited by the Stillbirth Report in the above recommendation provided:

30.8 Cessation of pregnancy – stillbirth and miscarriage

30.8.1Where the pregnancy ceases by way of miscarriage between 12 and 20 weeks gestation then subject to providing a medical certificate:

(a) the birth parent will be entitled to six weeks paid special parental leave; and

(b) the non-birth parent will be entitled to compassionate leave in accordance with Clause 29 of this Agreement.

30.8.2 Where the pregnancy ceases by way of stillbirth after 20 weeks gestation to birth then subject to providing medical certificate:

(a) the birth parent will be eligible for 16 weeks paid special leave; and

(b) the non-birth parent will be eligible for one week of paid special leave.

30.8.3 The leave set out above in this Clause 30.8 may be added to with approved accrued leave including annual leave, personal carer’s leave and accrued personal leave.[47]

In response to the recommendations made in the Stillbirth Report the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020, amended the FW Act to improve access to unpaid parental leave (UPL) and paid compassionate leave (PCL) for families dealing with the trauma of stillbirths, infant deaths and premature births. In relation to the changes made in respect of PCL, the FW Act was amended to provide that employees are able to take PCL in relation to a stillborn child if that child would have been an immediate family or household member had the child been born alive.[48]

Current law

Currently the FW Act provides two days PCL (unpaid for casuals) when:

  • a member of the employee’s immediate family or household:
    • contracts or develops a personal illness that poses a serious threat to his or her life
    • sustains a personal injury that poses a serious threat to their life or
    • dies[49] or
  • where a child is stillborn, if the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive.[50]

New miscarriage leave entitlement

Item 6 of Schedule 1 to the Bill provides that a miscarriage is ‘a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks’. The Explanatory Memorandum notes that the definition is ‘based on the general medical meaning of miscarriage’ and ‘the term ‘embryo’ is generally ‘used up to nine weeks’ gestation, after which the term ‘fetus’ is generally used’.[51]

In this regard the measure proposed by the Bill is more generous than what was recommended by the Stillbirth Report as compassionate leave will be available in relation to spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks. That is, it will apply to miscarriages that occur before the 12-week period provided for in the Ausgrid enterprise agreement cited by the Stillbirth Report.

Items 7 to 9 provide that:

  • an employee will be entitled to compassionate leave if they, or their spouse or de facto partner, has a miscarriage and
  • compassionate leave in relation to miscarriage is not available where the miscarriage results in a stillborn child, or where their former spouse or former de facto partner has a miscarriage (compassionate leave is already available where a child is stillborn).

In this regard the measure proposed by the Bill is less generous than what was recommended by the Stillbirth Report as only two days of PCL will be available where a miscarriage has occurred, rather than the six weeks paid special parental leave provided for in the Ausgrid enterprise agreement cited by the Stillbirth Report.

Stakeholder views

Most stakeholders who commented on the proposed changes – including trade union, business groups and women’s groups – supported the proposed changes in their current form.[52] The Law Council of Australia (LCA) also supported the proposed amendment but recommended that the proposed compassionate leave be available to the biological parent and a person who, whilst not a spouse, de facto partner or biological parent, would otherwise have had responsibility for the care of the child, and noted that the amendments as drafted may exclude:

  • a parent, for example the father of the baby who is in a relationship with the mother, but where that relationship is not classed as a de facto relationship or
  • an intended adopted parent.[53]

Specifically include sexual harassment in the anti-bullying regime

The Report noted that the FW Act currently ‘has the potential to address sexual harassment’ but expressed the view that the lack of an ‘express prohibition relating to sexual harassment’ and ‘uncertainty’ among employers regarding the unfair dismissal provisions ‘limit its capacity to provide protection for victims’.[54]

As such, as noted above, Recommendation 29 of the Report was to introduce a ‘stop sexual harassment order’ equivalent to the ‘stop bullying order’ into the FW Act, designed to facilitate the order’s restorative aim.[55]

Fair Work Act anti-bullying regime

The FWC can deal with workplace bullying applications under Part 6-4B of the FW Act. That Part:

  • allows a worker to apply to the FWC for an order to stop bullying if they have been bullied at work[56] and
  • allows the FWC to make any order it considers appropriate to stop the bullying, other than reinstatement of a person or the payment of compensation or a pecuniary amount.[57]

Current regime applies broadly

For the purposes of the FW Act anti-bullying regime a worker is defined as having the same meaning as in the Work Health and Safety Act 2011 (WHS Act).[58] This ensures that a broad range of persons who carry out work for a person conducting a business or undertaking (PCBU) in any capacity are covered, including employees, contractors and subcontractors, outworkers, apprentices, trainees, work experience students and volunteers.[59]

Current definition of bullying

Under the FW Act a worker is ‘bullied at work’ if while the worker is at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.[60]

Importantly, the behaviour must be ‘unreasonable’ in an objective sense. That is, a reasonable person, having regard to the circumstances, may see the behaviour as unreasonable.[61] Examples of such behaviour would include conduct that was victimising, humiliating or threatening.[62] In addition, a risk to health and safety includes mental health and safety as well as physical health and safety.[63] As such, the existing anti-bullying regime could be applied to sexual harassment – something the Report acknowledged.[64]

Applicable timelines for dealing with applications to stop bullying

Once the FWC receives an application to stop bullying, it must start to deal with the application within 14 days of the application being made.[65] This may include the FWC:

  • taking steps to inform itself of the matter, including by contacting the employer or other parties to the application
  • conducting a conference or
  • holding a hearing.[66]

Orders to stop bullying

If the FWC is satisfied that:

  • the worker has been bullied at work by an individual or a group of individuals and
  • there is a risk that the worker will continue to be bullied at work by the individual or group

then it may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.[67] Orders to stop bullying are not necessarily limited to only applying to the employer of the worker – they can apply to other persons such as co-workers, subcontractors and visitors to the workplace.[68] When considering the terms of any order the FWC must take into account:

  • any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body of which the FWC is aware
  • any procedures available to the worker to resolve grievances or disputes of which the FWC is aware
  • any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes of which the FWC is aware, and
  • any other matters it considers relevant.[69]

The FWC cannot order reinstatement of a worker or the payment of compensation or a pecuniary amount (this reflects the intended focus on resolving the matter by the resumption of normal working relationships).[70] That limitation aside, the types of orders that the FWC can make include orders requiring:

  • the individual or group of individuals to stop the specified behaviour
  • regular monitoring of behaviours by an employer
  • compliance with an employer’s workplace bullying policy
  • the provision of information and additional support and training to workers and
  • review of the employer’s workplace bullying policy.[71]

Consequences for contravening a stop bullying order

If a person contravenes a FWC order to stop bullying, a person affected by the contravention (as well as certain other persons[72]), may apply to a relevant Court[73] for an order in relation to contravention of a civil remedy provision. This can result in a maximum of 60 penalty units ($13,320) being imposed on the individual(s) who contravene a stop bullying order, and up to 300 penalty units ($66,600) if a corporation contravenes the stop bullying order.[74]

Bill specifically includes sexual harassment in the anti-bullying regime

Items 4 to 6 and 11 to 28 amend the existing anti-bullying jurisdiction in the FW Act to clarify that under that jurisdiction the FWC can make an order to stop sexual harassment as currently defined in section 28A of the SDA in a workplace.

As is the case with the current anti-bullying regime, before making an order to stop sexual harassment the FWC must be satisfied that:

  • the sexual harassment has occurred and
  • there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals.[75]

How the above two elements apply in relation to the measures proposed by the Bill is explored below.

No need for sexual harassment to have been repeated or recurring

As is the case with the current anti-bullying regime, before making an order to stop sexual harassment the FWC must be satisfied that the sexual harassment has occurred. Currently in relation to bullying there is a requirement imposed by subsection 789FD(1) that the relevant behaviour has occurred repeatedly (that is, more than once).

That will not be the case under the Bill as it defines sexual harassment by reference to existing section 28A of the SDA which applies where a single instance of sexual harassment has occurred. This is because the definition of sexual harassment in the SDA uses ‘an’ unwelcome sexual advance and ‘an’ unwelcome request for sexual favours.[76]

This means that FWC will be able to deal with complaints arising out of a single instance of sexual harassment, subject to a risk that the worker will continue to be sexually harassed at work by the individuals or individuals.

Must be a risk the worker will continue to be sexually harassed at work

Currently before the FWC can make an anti-bullying order it must be satisfied that there is a risk the worker will continue to be bullied at work.[77] The Bill imposes a similar requirement in relation to orders dealing with sexual harassment.

This means the FWC could not make orders where there is no risk of harassment occurring again, such as when the person who harassed the worker is no longer employed at the workplace (for example, when they have been terminated for having sexually harassed the worker).

Stakeholder views

Most stakeholders were supportive of the intention of the proposed amendments to specifically apply the existing anti-bullying jurisdiction of the FWC to sexual harassment.[78] The National Foundation for Australian Women, Australian Chamber of Commerce and Industry (ACCI), Australian Industry Group (AiG) and others supported the proposed amendments in their current form.[79]

Whilst support for the proposals was wide-ranging, some specific issues were identified. These are examined below.

Commencement date

If passed, the amendments would commence the day after Royal Assent.[80] In its submission to the Committee, the FWC requested that the amendments to specifically apply the existing anti-bullying jurisdiction of the FWC to sexual harassment ‘commence no earlier than 2 months after Royal Assent’ on the basis that such a change would:

  • provide adequate time to consult with experts and advisory groups on appropriate processes for case managing applications for orders to stop sexual harassment (including ensuring that appropriate confidentiality arrangements are in place)
  • provide adequate time to engage with industry and employee representatives, frequent users of the Commission’s services and other stakeholders
  • allow appropriate support services for applicants to be established (which could include triage and referral to external services such as sexual harassment support, counselling and mental health services)
  • allow the FWC to make changes to its forms and procedural rules
  • provide adequate time to train Commission Members, conciliators and case management staff who will deal with sexual harassment cases (in particular, on the nature, drivers and impacts of sexual harassment and on trauma informed practice) and
  • allow the FWC to develop tailored information resources for applicants, respondents, FWC staff and Members (including website material, template correspondence, guides and a benchbook).[81]

The Australian Council of Trade Unions (ACTU) and ACCI supported the request of the FWC for a delayed start to the amendments to the anti-bullying regime.[82]

The ‘at work’ threshold

The current anti-bullying regime in the FW Act applies where a worker has been bullied ‘at work’.[83] This has been held to encompass:

both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).[84]

In contrast the SDA uses the broader phrase ‘in connection with’ a person’s duty as an officer or employee.[85] As the courts have interpreted the phrase ‘in connection with’ expansively this means the SDA applies to a broader range of setting and circumstances than those ‘at work’ including where the sexual harassment:

  • occurs when one employee sexually harasses another employee while off-duty in staff accommodation quarters[86]
  • occurs at accommodation attended by employees while attending a work-related conference[87] and
  • that occurs in a home, after a work event.[88]

Proposed subparagraph 789FF(1)(b)(ii) only applies where the worker has been sexually harassed ‘at work’. Some stakeholders expressed concern at this threshold. For example, the Australian Discrimination Law Experts Group supported the amendments, but noted with concern the use of the ‘at work’ threshold:

the limitation contained in proposed s 789FD(2A) that the worker must be sexually harassed ‘at work’ will limit the capacity of these orders to address sexual harassment for workers. This is so because social media used outside working hours is a major avenue for bullying and harassment. Sexual harassment is also likely to occur at informal functions attended with work colleagues… If a worker engages in unwelcome conduct of a sexual nature by posting or sending materials to a co-worker but outside of work hours, and they are received by the co-worker when they are not at work or performing work, this would not satisfy the ‘at work’ requirement.[89]

The LCA recommended amending the Bill to reflect the ‘in connection to work’ threshold instead of an ‘at work’ threshold to ensure that the proposed amendments that would specifically apply the existing anti-bullying jurisdiction of the FWC to sexual harassment would apply as broadly as the SDA currently does.[90] 

Extending the amendments to both sexual harassment and sex-based harassment

As examined in detail elsewhere in this Digest, the Bill amends the SDA to insert new provisions that expressly provide that it is unlawful to harass a person on the ground of their sex (sex-based harassment). Whilst the amendments to the FW Act will apply the existing anti-bullying jurisdiction of the FWC to sexual harassment, they will not specifically apply the existing anti-bullying jurisdiction to sex-based harassment

Whilst the Explanatory Memorandum is silent on this issue, such an amendment may not be strictly necessary as the existing anti-bullying regime can already arguably be applied to sex-based harassment as such conduct would appear, at least in some circumstances, able to be captured by the existing anti-bullying regime in the FW Act.

Perhaps reflecting the uncertainty around the application of the existing anti-bullying regime in the FW Act to sex-based harassment, some stakeholders expressed concern about what they viewed as the potential inconsistency between the SDA and FW Act as amended with respect to sex-based harassment.[91] For example, the LCA recommended amending the Bill to extend the amendments to also capture sex-based harassment and sex discrimination generally, as did the AHRC.[92]

Whether the measure fully implements Recommendation 29 of the Report

As noted earlier in this Digest Recommendation 29 of the Report was to:

Introduce a ‘stop sexual harassment order’ equivalent to the ‘stop bullying order’ into the Fair Work Act. This should be designed to facilitate the order’s restorative aim.[93]

While the AHRC and other stakeholders expressed the view that the Bill implements Recommendation 29 of the Report,[94] the LCA suggested that its recommended amendments would result in the recommendation being ‘fully’ realised.[95]

Specifically provide that sexual harassment is a valid reason for dismissal

Recommendation 30 of the Report was to amend section 387 of the FW Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable.[96]

Background to unfair dismissal

Subject to certain conditions, the FW Act protects non-casual employees from unfair dismissal.[97] An unfair dismissal is one that is harsh, unjust or unreasonable and:

  • not consistent with the Small Business Fair Dismissal Code and
  • not a case of genuine redundancy.[98]

Where there is a not a valid reason for the dismissal, it will be unfair. However, even if there is a valid reason it is possible for the dismissal to be harsh, unjust or unreasonable (for example, termination of employment may be a disproportionate response to alleged misconduct, having regard to its nature and the employee’s length of service and prior history).[99]

Current law

Currently when determining if a dismissal was harsh, unjust or unreasonable, the FWC must consider a range of factors including whether there was a ‘valid reason for the dismissal’ relating to the person’s capacity or, relevantly to the Bill, the person’s conduct (including its effect on the safety and welfare of other employees).[100]

Case law establishes that there will be a valid reason for dismissal where the employer establishes that the employee engaged in serious misconduct justifying summary dismissal.[101] In addition, a reason will be valid when it is ‘sound, defensible or well-founded’,[102] even if it would not be grounds for summary dismissal at common law.[103]

Currently the FW Act provides that serious misconduct has the meaning prescribed by the Regulations.[104] In turn, the Fair Work Regulations 2009 defines serious misconduct as ‘having its ordinary meaning’ and (among other things) conduct that causes serious and imminent risk to:

  • the health or safety of a person or
  • the reputation, viability or profitability of the employer’s business.[105]

Case law establishes that sexual harassment is generally considered to be a valid reason for dismissal.[106] In addition, the Fair Work Amendment (Respect at Work) Regulations 2021 added sexual harassment to the list of examples of serious misconduct, and in doing say gave effect to Recommendation 31 of the Report.[107] Despite this however, sexual harassment will not be considered a valid reason in all cases justifying termination of employment.[108] This is because, as noted above, even once a valid reason for dismissal is established it is possible for the dismissal to be harsh, unjust or unreasonable in the context of the circumstances as a whole.

Bill clarifies that sexual harassment is a valid reason for dismissal

Item 10 amends section 387 of the FW Act by inserting a note that provides that for the purposes of determining if there is valid reason for the dismissal related to the person’s conduct (including its effect on the safety and welfare of other employees) conduct that can amount to a valid reason for dismissal includes where:

  • an employee sexually harasses another person and
  • the person does so in connection with the employee’s employment.

The Explanatory Memorandum notes that the amendment will not alter how the FWC will continue to exercise its existing discretion in considering whether a valid reason is established and whether a dismissal was harsh, unjust or unreasonable in all the circumstances, and notes:

This includes consideration of whether the employee was notified of the reason for dismissal and given an opportunity to respond, as well as other matters.[109]

Stakeholder views

The amendment proposed by item 10 was broadly supported by most stakeholders.[110] However, concerns were raised regarding:

  • that item 10 does not refer to sex-based harassment as well as sexual harassment[111] and
  • the failure to address perceived broader issues in the unfair dismissal framework that ‘can result in decisions favouring alleged procedural deficiencies or mitigating factors’ over the seriousness of conduct constituting a valid reason for dismissal.[112]

Key issues and provisions: amendments to the Sex Discrimination Act 1984

The Bill will amend the SDA to:

  • clarify the object of the SDA
  • prohibit sex-based harassment
  • expand the coverage of the SDA and
  • introduce simplified processes for complaints to the AHRC.

Clarifying objects of the Sex Discrimination Act 1984

Section 3 of the SDA sets out the objects of the Act. Its current objects include:

  • promoting ‘recognition and acceptance within the community of the principle of the equality of men and women’[113] and
  • eliminating, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity.[114]

Difference between formal and substantive equality

Formal equality primarily focuses on equal opportunity or equality of access. For example, a formal equality approach to non-discriminatory employment would focus on eradicating procedural restrictions for women in traditional male domains. Formal equality is argued to be predicated on ‘the assumption that inequality can be remedied by treating all people in an identical manner’ and is generally regarded as a ‘fundamental tenet of Western liberal political theory’ that underpins Australia’s legal system.[115]

In contrast substantive equality looks to the effect or outcome of decision making to assess whether or not equality will be increased.[116] That is, substantive equality is focused on outcomes (rather than opportunities) and ‘is aimed at addressing these more hidden, systemic and less tangible aspects of discrimination’.[117]

Current law

In addition to the object of promoting ‘recognition and acceptance within the community of the principle of the equality of men and women’[118] the SDA currently also specifically permits a person to take special measures (that is, positive discrimination) ‘for the purpose of achieving substantive equality between … men and women’.[119] As noted by the AHRC:

The idea behind special measures is that it is sometimes necessary for differences and disadvantages between people to be taken into account in order to ensure that everyone is treated equally and fairly.[120]

That is, the SDA already permits actions to be taken in the pursuit of substantive equality between men and women in addition to seeking to promote acceptance within the community of formal equality.

As noted earlier in this Digest, Recommendation 16 of the Report included a recommendation that the SDA be amended to provide that one of its objects was ‘to achieve substantive equality between women and men’.[121]

In the Response, the Government noted in relation to Recommendation 16 that it ‘supports equality of opportunity as between men and women’ (that is, formal equality).[122]

What is proposed

Item 31 would insert proposed paragraph 3(e) to the SDA to add the object of achieving ‘so far as practicable, equality of opportunity between men and women’ – that is, formal equality. This is consistent with the Government’s Response but differs from the recommendation in the Report to adopt as an object the achievement of substantive equality between men and women.

Neither the Response nor the Explanatory Memorandum appear to specifically articulate the reasons for the difference between the Recommendation and the approach set out in the Response which is reflected in the Bill in item 31.

Item 30 would amend existing paragraph 3(c) to specifically include an object of eliminating, so far as is possible, ‘discrimination involving harassment on the ground of sex’ (that is, sex-based harassment) in addition to the existing reference to sexual harassment. This amendment reflects the proposed new provisions prohibiting sex-based harassment contained in the Bill that are examined later in this digest.

Stakeholder views

Some stakeholders criticised the adoption of formal, rather than substantive equality in item 31,[123] and some recommended that the Bill be amended to provide that one of the objects of the SDA is ‘to achieve substantive equality between women and men’, as recommended by the Report.[124]

Some stakeholders supported item 31 in its current form.[125] The ACCI also recommended that the SDA be amended to ‘clarify whether the terminology ‘men and women’ used in the additional object refers to sex or gender’.[126]

Expanding the coverage of the Sex Discrimination Act 1984

The Report identified a number of ‘gaps’ in the coverage of the SDA with respect to sexual harassment, namely that it did not currently apply to:

  • unpaid workplace participants, such as volunteers, interns or students[127]
  • people who are self-employed workplace participants[128]
  • state and territory based public servants[129]

With those gaps in the coverage of the SDA in mind, the Report noted the need for the SDA to be amended with expanded definitions and coverage ‘to adapt to a modern and changing workplace, consistent with developments at an international level to address violence and harassment in the world of work’ as a way of ensuring that ‘all persons in the world of work, including paid and unpaid workers, and those who are self-employed’ are protected by the SDA.[130] In its Response, the Government noted:

Although not recommended in the Report, the Government will also clarify that the scope of the Sex Discrimination Act extends to judges and members of parliament.[131]

Current law

Relevantly to the measures contained in the Bill, the existing protections in relation to sexual harassment apply to employment and workplaces.[132] The current definitions of employment, workplace and workplace participant in the SDA are set out in Table 2 below.

Table 2: definitions of employment, workplace, workplace participant and contract worker in the SDA.

TermDefinition
Employmentemployment includes:
(a) part‑time and temporary employment;
(b) work under a contract for services; and
(c) work as a Commonwealth employee
Workplaceworkplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
workplace participantworkplace participant means any of the following:
(a) an employer or employee;
(b) a commission agent or contract worker;
(c) a partner in a partnership.
contract workercontract worker means a person who does work for another person pursuant to a contract between the employer of the first‑mentioned person and that other person.

Source: Sex Discrimination Act 1984, sections 4 and 28B.

It flows from the above that the SDA arguably does not apply to unpaid workplace participants. In that regards the Report concluded:

People who are unpaid workplace participants, such as volunteers, interns or students, and people who are self-employed workplace participants are not expressly covered by the employment provisions in the Sex Discrimination Act.[133]

As noted above, in its Response, the Government stated it would also clarify that the scope of the SDA extends to judges and members of parliament.[134] In that regard, the Explanatory Memorandum notes:

  • Members of parliament who are not Members of the Federal Executive Council or Ministers, and staff and consultants employed under the Members of Parliament (Staff) Act 1984 (MOPS Act) are ‘are already covered under existing section 28B of the SD Act which prohibits workplace sexual harassment by virtue of being workplace participants (such as employers/employees)’ but
  • nonetheless ‘do not clearly fall within the existing definitions of ‘administrative office’ and ‘Commonwealth employee’ under the SD Act’.[135]

The Explanatory Memorandum also notes that the SDA currently ‘applies to judges at the federal level’ to the extent the SDA applies to ‘employment’, as judges at the federal level are included within the existing definition of ‘administrative office’.[136]

Work Health and Safety model

In Australia WHS laws do not rely solely on the existence of an employee-employer relationship. That is, they do not apply solely based on employment. Instead WHS laws are drafted to apply to people who carry out work in any capacity for a person conducting a business or undertaking (PCBU) including employees, contractors, subcontractors, self-employed persons, outworkers, apprentices and trainees, work experience students and volunteers who carry out work.[137] In addition, WHS laws also apply to other people at a workplace like visitors and customers.[138] The central concepts underpinning Australia’s WHS laws are a PCBUworker and workplace. These are set out in Table 3 below.

Table 3: definition of PCBU, worker and workplace

TermDefinition
person conducting a business or undertaking (PCBU)a PCBU exists:whether the person conducts the business or undertaking alone or with others; andwhether or not the business or undertaking is conducted for profit or gain.[139]
workera person who ‘carries out work in any capacity’ for a PCBU including work as:an employeea contractor or subcontractoran employee of a contractor or subcontractoran employee of a labour hire company who has been assigned to work in the PCBUan outworkeran apprentice or traineea student gaining work experiencea volunteera person of a prescribed class ora person conducting the business or undertaking if the person is an individual who carries out work in that business or undertaking.[140]
workplacea place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.[141]

Sources: as per footnotes in table.

In relation to the definition of a PCBU, Safe Work Australia (SWA) notes a ‘business’ refers to ‘enterprises usually conducted with a view to making a profit and have a degree of organisation, system and continuity’ whilst an ‘undertaking’ may have ‘elements of organisation, systems, and possibly continuity, but are usually not profit-making or commercial in nature’.[142]

The effect of these definitions is that WHS models apply broadly and capture almost all workplace participants.

As noted earlier in this Digest the Report recommended amending the SDA so that:

  • the definition of ‘workplace participant’ and ‘workplace’ covers all persons in the world of work, including paid and unpaid workers, and those who are self-employed and
  • the current exemption of state public servants is removed.[143]

The Report also pointed to the WHS model as being one that ‘is deliberately broad and intended to capture any person who carries out work in any capacity’ for a PCBU.[144] In the context of the above recommendations, applying the WHS model to parts of the SDA could clearly give effect to the recommended reforms to the coverage of the SDA with respect to sexual harassment.

Applying the WHS model to sexual harassment and sex-based harassment

The Bill will amend the existing protection against sexual harassment in the workplace by applying the WHS concepts of a PCBU and worker found in the Work Health and Safety Act 2011 (Cth) (the WHSA) to existing section 28B of the SDA. For example, proposed subsection 28B(4) (at item 63) provides:

(4)   It is unlawful for a worker in a business or undertaking to sexually harass, or harass on the ground of sex:

        (a) a fellow worker; or

        (b) a person who is seeking to become a worker in the business or undertaking.

Item 63 and proposed section 28AB (at item 60) give effect to Report recommendation 16(d) by ensuring that the existing protection against sexual harassment in the workplace (as well as the new protection against sex-based harassment) applies broadly to all persons at a workplace, including a person conducting a business or undertaking, a worker, employees and employers. It will also apply to other persons otherwise connected to the workplace (for example, customers).[145]

In addition, proposed sections 28B(5) to (8) use the ‘in connection with’ threshold. This will ensure that the new protections are not limited to conduct that occurs ‘at work’. The Explanatory Memorandum notes:

The term ‘in connection with’ does not mean that a ‘worker’ or ‘PCBU’, or ‘employee’ or ‘employer’ must be actually performing their work duties at the time the conduct occurs. Instead, the term ‘in connection with’ requires that they are engaged in some form of conduct or activity, or are visiting a particular place, as a result of being a ‘worker’ or ‘PCBU’, or ‘employee’ or ‘employer’.[146]

As such the Bill gives effect to Report Recommendation 16(d).

Expanding forms of employment captured by the SDA

As noted above the Report recommended that the current exemption of state public servants be removed.[147] In addition, in its Response the Government noted it would also clarify that the scope of the SDA extends to judges and members of parliament.[148] The Bill amends the SDA to:

  • clarify that it applies to all members of parliament, judges, staff and consultants employed under the MOPS Act[149]
  • ensure it applies to state public servants (and independent contractors of state governments), employees of local governments, state public authorities, members of a state Parliament and their staff, and state judicial officers[150] and
  • ensure it applies to all territory public servants (and impendent contractors of territory governments), territory public authorities, members of territory legislative assemblies and their staff and territory judicial officers.[151]

As such, the Bill gives effect to both Report Recommendations 16(d) and (e) and the Government’s Response in relation to clarifying that the SDA extends to judges and members of parliament.

Stakeholder views

The amendments to expand the coverage of the SDA with respect to sexual harassment and sex-based harassment were welcomed by most stakeholders.[152] Whilst support was almost universal, some concerns and recommendations were made by stakeholders.

The LCA noted that whilst ‘the proposed amendments do significantly improve coverage under the SDA’ in its view ‘the amendments still fall short of giving effect to Recommendation 16(d), which calls for the coverage of all persons in the world of work’ (emphasis in original).[153] The LCA also noted that the proposed amendments relied on definitions in the WHSA which ‘risks amendments to the latter undermining the coverage and effectiveness in the SDA’.[154] The LCA argued:

by basing amendments on the original complex model of the SDA, the Bill proposes another overly complex model which requires victims to work out whether they are protected from sexual harassment by reference to employment status. Rather than expand the existing patchwork of protections, with the attendant complexities and ambiguities, the Law Council considers that this issue ought to be considered from the opposite direction- a general prohibition (if only in the ‘world of work’ as proposed in the [email protected] report) with any exemptions (to the extent that they can be justified) carved out … The Law Council has for this reason previously advocated for federal legislation including the SDA to be amended to protect any person performing work, not just those who meet the proscribed employment relationships, the proscribed meanings of workplace participant in a workplace (or equivalent), or who are incidentally providing goods, services or facilities, educational institutions, or other specific functions.[155]

In contrast to the above, the AHRC expressed the view that not only do the amendments ‘implement recommendation 16(d) of the [email protected] report’ but also:

fit neatly into the model proposed by the Sex Discrimination Commissioner of improving the coordination, consistency and clarity between anti-discrimination, employment and work health and safety legislative schemes.[156]

Likewise, the ACTU noted that the proposed amendments would ‘ensure all workers and workplaces are protected from sexual harassment’.[157]

The ACCI argued that the proposed changes ‘expand the potential for employers to be vicarious liability [sic] for a broad range of behaviours in including behaviour outside of workplace that can loosely be connected to workplace’ and therefore noted:

such an expansion of responsibility is likely mean a greater potential for the employers to need to influence or restrict the way ‘workers’ including non-employees behave outside of work hours in order ensure they have taken reasonable steps to protect ‘workers’ in order to meet their legal obligations. Some employers may rightly and fairly choose to take steps to ensure compliance with the expanded coverage of the SD Act by for example issuing policies such as blanket bans on ‘workers’ being friends on social media with any other workers or restricting access to the workplace by workers outside of strict work hours in order to seek to comply with the law as amended.[158]

Prohibiting sex-based discrimination

As noted earlier in this Digest, the Report recommended that:

  • sex-based harassment be expressly prohibited and
  • creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex be expressly prohibited.[159]

Current law

Currently the SDA provides protection against sexual harassment. Section 28A of the SDA provides that a person sexually harasses another person if:

  • they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • they engage in other unwelcome conduct of a sexual nature in relation to the person harassed

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Whilst not explored in detail in this Digest, sexual harassment requires that the conduct complained of must meet three elements:

  • the conduct must be unwelcome and
  • the conduct must be of a sexual nature and
  • reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.[160]

Importantly, case law establishes that the ‘of a sexual nature’ element is not automatically established merely by the use of gender-based words (or even potentially sexually charged language) unless the conduct is accompanied by sexual connotations.[161]

This means that, as noted by the Report, where a person alleges that they are being harassed because of their sex (that is, where sex-based harassment occurs) but the conduct complained of does not amount to ‘conduct of a sexual nature’ then ‘the complaint may be assessed and accepted as one alleging sex discrimination’.[162]

The Report noted that whilst case law ‘supports that complaints can be raised as a matter of sexual harassment, sex discrimination or both’ that case law ‘may not be readily understood by the community more broadly’ and therefore:

to provide clarity and certainty to the law, which ultimately supports access to justice, the Commission recommends that sex-based harassment be expressly prohibited under the Sex Discrimination Act. One way this could be achieved is to incorporate a prohibition on sex-based harassment into either the sex discrimination or sexual harassment provisions within the Sex Discrimination Act.[163]

This is reflected in Recommendation 16(b).

What is proposed?

The Bill will prohibit sex-based harassmentProposed section 28AA (at item 60) defines sex-based harassment in the following terms:

(1) For the purposes of this Act, a person harasses another person (the person harassed) on the ground of sex if:

        (a) by reason of:

                   (i) the sex of the person harassed; or

                   (ii) a characteristic that appertains generally to persons of the sex of the person harassed; or

                   (iii) a characteristic that is generally imputed to persons of the sex of the person harassed;

the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed; and

        (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 person harassed would be offended, humiliated or intimidated.

Proposed section 28AA broadly replicates the existing structure of section 28A in that the three elements are unwelcome conduct, on the basis of the sex of the person harassed, which a reasonable person, having regard to all the circumstances, would have anticipated could offend, humiliate or intimidate the person harassed. The key difference between proposed section 28AA and existing section 28A being that the conduct need only relate to the sex of the person harassed, rather than having to be of a sexual nature.

Key issue: ‘seriously demeaning’ threshold

Case law suggests that the inclusion of the word ‘offended’ along with humiliated or intimidated in section 28A of the SDA points to a requisite degree of seriousness about the behaviour complained about .[164] That is, case law decided under the SDA in relation to sexual harassment suggest that at a minimum, the relevant conduct captured must not be trivial or ‘mild’, and should have a degree of ‘seriousness’ about it.

Further, case law decided under the Racial Discrimination Act 1975 (RDA) clearly indicates that when considering the meaning of the word ‘offend’ when used in conjunction with the words ‘humiliate’ and ‘intimidate’ there is an intention that the prohibition apply to ‘serious incidents only’ and not ‘mere slights’.[165]

That is, case law decided under the SDA and other anti-discrimination legislation suggests that there is an implied threshold of ‘seriousness’, at least beyond trivial or ‘mild’, in relation to the conduct captured by section 28A in relation to claims of sexual harassment.

Proposed paragraph 28AA(1)(a) requires that the unwelcome conduct be of ‘a seriously demeaning nature’. The Explanatory Memorandum notes:

This term should be interpreted in accordance with its ordinary meaning. By definition, to ‘demean’ is to debase or degrade another person. The inclusion of this term is intended to provide an appropriate limit on the scope of conduct captured under this provision.[166]

Several stakeholders raised concerns about the drafting of proposed paragraph 28AA(1)(a).[167] This led the Opposition Senators, in their Dissenting report, to conclude:

The inclusion of a ‘seriously demeaning’ threshold in the SD Act would create a uniquely burdensome test in Australian sex discrimination law and it should not be included in the bill.[168]

The Opposition Senators recommended that the ‘seriously demeaning’ test be amended so that ‘it is consistent with existing legal standards’ and the Report recommendations.[169] In their additional comments, the Australian Green Senators likewise recommended that the Bill be amended to:

Replace ‘seriously demeaning’ in section 28AA with ‘demeaning’ to bring the sex-based harassment offence in line with other offences under the Sex Discrimination Act 1984.[170]

Given that some dictionary and thesaurus definitions note that demean is a synonym of humiliate, and case law suggests that the word ‘humiliate’ inherently implies a degrees of seriousness, then arguably the word ‘seriously’ could be removed from proposed subsection 28AA(1) without changing the intended effect of the provision which is, as stated in the Explanatory Memorandum, to not capture ‘mild forms of inappropriate conduct based on a person’s sex that are not of a sufficiently serious nature’.[171]

Stakeholder views

Most stakeholders were supportive of the intention to prohibit sex-based harassment,[172] but as noted above many stakeholders raised concerns about the use of ‘seriously demeaning’ in proposed paragraph 28AA(1)(a).

The ACCI noted that as sex-based harassment ‘is already unlawful’ it would be:

more appropriate to instead clarify that, as noted in the Explanatory Memorandum, sex-based harassment can already be found to be unlawful under the SD Act, as opposed to creating a new, and duplicative, provision. For example, this could be done by way of legislative note, or guidance material.[173]

Key issue and provisions: making complaints to the Australian Human Rights Commission

The Bill will implement recommendations 21 and 22 of the Report, namely that the AHRC Act be amended:

  • to make explicit that any conduct that is an offence under section 94 of the SDA can form the basis of a civil action for unlawful discrimination[174] and
  • so that the President’s discretion to terminate a complaint under the SDA on the grounds of time does not arise until it has been 24 months since the alleged unlawful discrimination took place.[175]

Clarifying jurisdiction of courts to deal with unlawful discrimination matters

The Report noted:

three cases since 2011 have cast doubt on whether either the Federal Circuit Court or the Federal Court has jurisdiction to hear an application of unlawful discrimination under the Australian Human Rights Commission Act, where the alleged unlawful discrimination is an act of victimisation brought as a civil action.[176]

It recommended legislative amendment to clarify the jurisdiction of the Federal Circuit Court or the Federal Court to hear an application under the SDA alleging victimisation as a civil cause of action.[177] It further recommended that the AHRC Act be amended to make explicit that any conduct that is an offence under section 94 of the SDA can form the basis of a civil action for unlawful discrimination.[178]

What the Bill does

Proposed section 47A of the SDA (at item 77) effectively implements Recommendation 21 of the Report by providing that victimisation conduct is unlawful discrimination that can form the basis of a civil action, in addition to the criminal offence under section 94 of the SDA. Whilst this is a different method to the one recommended by the Report (which recommended introducing amendments to the AHRC Act instead), it achieves the same practical effect.

The Explanatory Memorandum accurately sets out the operation of the proposed changes at pages 52 to 53.

Item 3 amends the discretionary grounds on which a complaint may be terminated by the President of the AHRC to extend the minimum period after which a complaint may be terminated from the current six months after the alleged unlawful conduct took place to 24 months after the alleged unlawful conduct took place. The Explanatory Memorandum accurately sets out the operation of the proposed changes at pages 18 to 19.

Stakeholder Views

The implementation of these recommendations was generally well received, with the ABA and BCA both expressing support for the changes.[179] However the ABA did note that it ‘does not agree with Item 88 which will give the new s 47A retrospective operation and effect.’[180]

The LCA noted that the form of the amendment ‘deviates from the recommendation in [email protected]’ but:

considers that this is an acceptable means of achieving the outcome of making explicit that any conduct that is an offence under section 94 of the SDA can form the basis of a civil action for unlawful discrimination.[181]

The AHRC however noted that:

While these amendments will create certainty in relation to victimisation under the SDA, without equivalent amendments being made in relation to the [Disability Discrimination Act 1992Racial Discrimination Act 1975, and the Age Discrimination Act 2004], they have the potential to create further uncertainty in relation to victimisation under those other Acts.[182]

Consequently, the AHRC recommended amending the corresponding ‘victimisation provisions in the [Disability Discrimination ActRacial Discrimination Act and the Age Discrimination Act] in the same way as proposed for the SDA’ to ensure certainty for the operations of these provisions.’[183]

Date introduced:  24 June 2021
House:  Senate
Portfolio:  Attorney-General
Commencement: The day after the Bill receives 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 Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.