Australia: Federal Government introduces major anti-discrimination reform through the new Respect at Work Bill
Authors: Greg Robertson and Amelia Dowey
In March 2020, the Australian Human Rights Commission (Commission) (Australia’s national human rights institution) published its Respect@Work: Sexual Harassment National Inquiry Report (Respect@Work Report), making 55 recommendations to the Commonwealth Government (as well as states and territories, employers and industry groups) to prevent and address sexual harassment in the workplace.
In September 2021, the Federal Government enacted 6 of the 55 recommendations made in the Respect@Work Report through the introduction of the Sex Discrimination and Fair Work (Respect At Work) Amendment Act 2021 (Cth). Of note, 1 of the 6 recommendations reflected in the amending legislation extended the 6 month timeframe for bringing a complaint under the Sex Discrimination Act 1984 (Cth) (the federal sex discrimination legislation) to 24 months after the alleged acts, omissions or practices took place.
On 27 September 2022, the Federal Government introduced into Parliament the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. If passed, the Bill will implement a further 7 of the 55 recommendations made in the Respect@Work Report, including:
- prohibiting conduct that subjects another person to a workplace environment that is hostile on the ground of sex. A workplace environment will be considered “hostile” if a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating. The circumstances to be taken into account include, but are not limited to, the seriousness of the conduct, whether the conduct was continuous or repetitive, and the role, influence or authority of the person engaging in the conduct.
- implementing a positive duty on employers and persons conducting a business or undertaking (duty holder) to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment or harassment on the ground of sex, hostile workplace environments, and acts of victimisation. Matters to be taken into account when determining whether a duty holder has complied with their positive duty include the size, nature and circumstances of the duty holder’s business or undertaking, the duty holder’s resources, and the practicability and the cost of steps to eliminate the abovementioned prohibited conduct.
- amending the definition of harassment on the ground of sex to remove the reference to conduct of a “seriously” demeaning nature. The explanatory memorandum explained that this amendment was included to “ensure that the provision does not impose an unnecessarily high threshold on complainants”.
- introducing new inquiry, monitoring and notification functions for the Commission, such as enabling the Commission to issue a written notice to a person who has failed to comply with their positive duty. The written notice must, amongst other things, specify action that the person must take, or refrain from taking, in order to address the failure. Where a person has failed to comply with a written notice, the Commission may apply to the federal court jurisdiction for an order directing the person to comply with the notice.
- clarifying that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint. The explanatory memorandum explained that this amendment was included to “address judicial uncertainty” as to whether the federal courts had jurisdiction to hear an application of unlawful discrimination, “where the alleged unlawful discrimination is an act of victimisation brought as a civil action”.
- extending the 6 month timeframe for bringing a complaint under the federal race discrimination, age discrimination and disability discrimination legislative schemes to 24 months after the alleged acts, omissions or practices took place. This is consistent with the amendments to the Sex Discrimination Act 1984 (Cth) made in September 2021.
Key Action Points for Human Resources and In-House Counsel
Employers and persons conducting a business or undertaking are encouraged to take a preventative and proactive approach to discrimination on the ground of sex, sexual harassment and victimisation in the workplace.
