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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ANTI-DISCRIMINATION AND HUMAN RIGHTS LEGISLATION AMENDMENT
(RESPECT AT WORK) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, The Hon Mark Dreyfus KC MP)
ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM
Acts Interpretation Act Acts Interpretation Act 1901
AD Act Age Discrimination Act 2004
Commission Australian Human Rights Commission
AHRC Act Australian Human Rights Commission Act 1986
Bill Anti-Discrimination and Human Rights Legislation
Amendment (Respect at Work) Bill 2022
DD Act Disability Discrimination Act 1992
FC Act Federal Court of Australia Act 1976
FCFCA Act Federal Circuit and Family Court of Australia Act 2021
Federal courts Federal Court of Australia and Federal Circuit and Family
Court of Australia
Free and Equal Position Free and Equal: A reform agenda for federal discrimination
Paper laws - Position Paper (2021)
IGIS Inspector-General of Intelligence and Security
IGIS Act Inspector-General of Intelligence and Security Act 1986
PCBU A person conducting a business or undertaking
PGPA Act Public Governance, Performance and Accountability Act 2013
RD Act Racial Discrimination Act 1975
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
Respect@Work Report Respect@Work: National Inquiry into Sexual Harassment in
the Workplace (2020)
Respect at Work Act Sex Discrimination and Fair Work (Respect at Work)
2021 Amendment Act 2021
Respect at Work Bill Sex Discrimination and Fair Work (Respect at Work)
2021 Amendment Bill 2021
SD Act Sex Discrimination Act 1984
Model WHS laws Work Health and Safety Act 2011
WGEA Workplace Gender Equality Agency
WGE Act Workplace Gender Equality Act 2012
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ANTI-DISCRIMINATION AND HUMAN RIGHTS LEGISLATION AMENDMENT
(RESPECT AT WORK) BILL 2022
GENERAL OUTLINE
1. The Government is taking decisive action to address sexual harassment in Australian
workplaces by implementing all recommendations of the Sex Discrimination
Commissioner's Respect@Work Report as a matter of priority. This Bill would
implement seven of the recommendations of the Respect@Work Report and
significantly strengthen the legal and regulatory frameworks relating to sexual
harassment in Australia. As part of implementing these recommendations, the Bill
would also expand the role of the Commission in preventing sexual harassment and
other forms of sex discrimination. This suite of reforms is critical for ensuring safer,
respectful and more equitable workplaces in Australia.
2. The Commission released the Respect@Work Report on 5 March 2020, which was
based on the findings of the National Inquiry into Sexual Harassment in Australian
Workplaces (National Inquiry). The National Inquiry found that 33% of people who
had been in the workforce in the preceding five years had experienced workplace
sexual harassment (39% of women and 26% of men). In addition to gender, certain
workers are more likely to be harassed than others, including young workers, LGBTI
workers, Aboriginal and Torres Strait Islander workers, workers with disability and
workers from culturally and linguistically diverse backgrounds.
3. In response to these findings, the Respect@Work Report made 55 recommendations
focused on preventing and addressing sexual harassment in Australian workplaces.
In particular, the Respect@Work Report recommended a number of legislative
amendments to strengthen and clarify the legal and regulatory frameworks relating
to sexual harassment and increase the focus on prevention. The Respect@Work
Report concluded that the existing frameworks relating to workplace sexual
harassment are complex, difficult to navigate, overly reactive (rather than focused on
prevention) and place a significant burden on individuals who experience sexual
harassment to make a complaint.
4. This Bill would implement recommendations 16, 17, 18, 19, 23, 25 and 43 of the
Respect@Work Report. The Bill would also make a number of ancillary
amendments arising from the changes made by the Respect at Work Act 2021 to
provide consistency across the Commonwealth anti-discrimination framework and
achieve the intended outcomes of the Respect@Work Report.
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Subjecting a person to a hostile workplace environment on the ground of sex
5. The Bill would insert a new provision in the SD Act to prohibit conduct that subjects
another person to a workplace environment that is hostile on the ground of sex. This
amendment would implement recommendation 16(c) of the Respect@Work Report.
6. The Respect@Work Report found that sexual harassment may occur where a
workplace environment is sexually charged or hostile, even if the specific conduct is
not directed at a particular person. It was noted that conduct such as displaying
obscene or pornographic materials, general sexual banter, or innuendo and offensive
jokes can result in people of one sex feeling unwelcome or excluded by the general
environment. The existence of these environments can increase the risk of people
experiencing other forms of unlawful discrimination, such as sexual harassment.
7. While the courts have determined that conduct that results in a hostile work
environment may be captured through existing provisions of the SD Act, this is not
well understood or recognised by employers and PCBUs. This amendment would
provide clarity and certainty to the law and set clear boundaries on acceptable
conduct in the workplace.
8. The Bill sets out the meaning of subjecting a person to a hostile workplace
environment, which includes a requirement that 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
to a person of the sex of the second person by reason of their sex or characteristics
that generally appertain or are imputed to persons of their sex.
9. The circumstances to be considered when determining whether the conduct is
unlawful include: the seriousness of the conduct; whether the conduct was
continuous or repetitive; the role, influence or authority of the person engaging in
the conduct; and any other relevant circumstance. The inclusion of these factors will
provide appropriate limits on the scope of conduct captured under the provision.
10. The provision is intended to align with other provisions in the SD Act by using
existing terms and concepts, such as 'offensive, intimidating or humiliating' and the
reasonable person test. This would enable existing case law to be considered when
interpreting and applying the new provision.
Positive duty to eliminate unlawful sex discrimination
11. The Bill would insert a new provision in the SD Act to introduce a positive duty on
all employers and PCBUs to take 'reasonable and proportionate measures' to
eliminate unlawful sex discrimination, including sexual harassment, as far as
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possible. These amendments would implement recommendation 17 of the
Respect@Work Report.
12. The Respect@Work Report observed that the current legal framework is not
effectively preventing sexual harassment because it is focused on addressing and
responding to conduct that has already occurred. This amendment is intended to shift
this focus by requiring employers and PCBUs to proactively prevent discrimination
and harassment in their workplaces in order to achieve compliance with the SD Act.
13. The Bill would provide that an employer or PCBU (the duty holder) must take
reasonable and proportionate measures to eliminate, as far as possible, specified
forms of unlawful sex discrimination under the SD Act, including sex
discrimination, sexual and sex-based harassment, hostile work environments, and
victimisation. This would require measures be taken to prevent this conduct being
engaged in by duty holders themselves, as well as their employees, workers and
agents, and third parties, where applicable. This may involve implementing policies
and procedures, collecting and monitoring data, providing appropriate support to
workers and employees, and delivering training and education on a regular basis.
14. The meaning of 'reasonable and proportionate measures' will vary between
employers and PCBUs in accordance with their particular circumstances. The Bill
would provide that the matters to be considered when determining whether the duty
holder is complying with the positive duty include the size, nature and circumstances
of the business or undertaking; the duty holder's resources, whether financial or
otherwise; and the practicability and costs associated with the steps. These
considerations would ensure that the positive duty is adaptable and can be applied by
all employers and PCBUs.
15. The positive duty is intended to align with section 106 of the SD Act, which relates
to the vicarious liability of employers for unlawful acts done by their employees or
agents. Under section 106 of the SD Act, an employer is not liable for the unlawful
conduct of their employees or agents if they have taken 'all reasonable steps' to
prevent their employees from engaging in the conduct. This means that employers
should already be preventing discrimination and harassment by their employees or
agents in order to manage their potential liability under the SD Act.
16. The positive duty is also intended to operate concurrently with the existing duties in
the model WHS laws, which require employers and PCBUs to provide a safe
working environment for workers, so far as is reasonably practicable. In practice,
this requires the implementation of measures by PCBUs, such as having policies in
place, conducting training and addressing incidents. It is intended that the model
WHS laws and positive duty in the SD Act would operate in a mutually reinforcing
way to build safer and more respectful workplaces.
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Enforcement of the positive duty
17. The Bill would insert new provisions in the AHRC Act to enable the Commission to
monitor and assess compliance with the positive duty in the SD Act. These
amendments would ensure that recommendation 18 of the Respect@Work Report is
implemented.
18. The Respect@Work Report recommended that the positive duty
(recommendation 17) be accompanied by an appropriate enforcement mechanism to
help ensure it is effective and employers engage with their legal obligations
(recommendation 18). An appropriate enforcement mechanism would also ease the
burden on individuals by enabling the Commission to initiate action to address
unlawful discrimination, rather than relying on individuals making complaints.
19. The Bill would confer a number of functions on the Commission to ensure that
employers and PCBUs are supported to meet their obligations and achieve
compliance. This includes functions to prepare and publish guidelines for complying
with the positive duty and promote understanding, and public discussion, of the
positive duty. As noted in the Respect@Work Report, these functions would enable
the Commission to work collaboratively with employers to assist them in complying
with the positive duty.
20. The Bill would also confer functions on the Commission to monitor and assess
compliance with the positive duty when necessary, including the options to:
• conduct inquiries into a person's compliance with the positive duty and
provide recommendations to achieve compliance;
• give a compliance notice specifying the action that a person must take, or
refrain from taking, to address their non-compliance;
• apply to the federal courts for an order to direct compliance with the
compliance notice; and
• enter into enforceable undertakings in accordance with the Regulatory
Powers Act.
21. The Commission is able to initiate an inquiry into a person's compliance with the
positive duty if it 'reasonably suspects' that a person is not complying. The
Commission may form this view based on information or advice provided by other
agencies or regulators, information disclosed by impacted individuals, or media
reporting, for example.
22. The compliance functions conferred on the Commission include appropriate
procedural fairness mechanisms for employers and PCBUs. This includes provisions
to ensure employers and PCBUs can seek reconsideration of a compliance notice or
apply to the federal courts for review of a compliance notice.
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23. The Bill would provide that the Commission's new functions to monitor and assess
compliance with the positive duty commence 12 months after Royal Assent. This
delayed commencement would ensure that employers and PCBUs have sufficient
time to understand their obligations under the positive duty and implement changes,
if necessary. It would also enable the Commission to prepare and publish guidance
materials on the positive duty and establish its new compliance functions.
Systemic inquiries into unlawful discrimination
24. The Bill would insert a new provision in the AHRC Act to provide the Commission
with a broad inquiry function to inquire into systemic unlawful discrimination or
suspected systemic unlawful discrimination. This amendment would implement
recommendation 19 of the Respect@Work Report.
25. The Respect@Work Report found that there are significant cultural and systemic
factors driving sexual harassment in the workplace and addressing these systemic
drivers can be challenging. It was noted that the Commission has existing powers to
inquire into systemic issues in relation to human rights and unlawful discrimination,
however these inquiry powers can be confined in scope. As such, the
Respect@Work Report recommended that the Commission be provided with an
enhanced inquiry function to inquire into systemic unlawful discrimination,
including systemic sexual harassment, on its own motion.
26. The Bill would provide that the Commission can inquire into any matter that may
relate to systemic unlawful discrimination or suspected systemic unlawful
discrimination. The Bill would define 'systemic unlawful discrimination' to mean
unlawful discrimination that 'affects a class or group of persons' and 'is continuous,
repetitive or forms a pattern.'
27. This definition would enable the Commission to inquire into instances of unlawful
discrimination within individual businesses as well as instances of unlawful
discrimination across multiple businesses within a broader industry or sector. It
would also enable the Commission to inquire into businesses where it is suspected
that unlawful discrimination may be occurring.
28. The Bill would enable the Commission to perform its systemic inquiry functions
when requested to do so by the Minister or when the Commission considers it to be
appropriate to do so. This would allow the Commission to commence an inquiry on
its own motion, such as where an organisation has requested it do so or it has
become aware of issues relating to an organisation or sector. Once the Commission
has inquired into a matter, the Commission may report to the Minister in relation to
the inquiry or publish a report in relation to the inquiry, or both, and, if appropriate,
make recommendations to address the issues identified.
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Representative applications
29. The Bill would amend the AHRC Act to enable representative bodies to make
representative applications on behalf of people who have experienced unlawful
discrimination in the federal courts. This amendment would implement
recommendation 23 of the Respect@Work Report.
30. The AHRC Act currently enables representative bodies, such as unions, to initiate a
representative complaint in the Commission on behalf of one or more persons.
However, representative bodies are unable to make an application to the federal
courts on behalf of the group if the matter is not resolved and terminated by the
Commission. This means that the ability to initiate court proceedings under the
AHRC Act is more constrained than the ability to bring complaints to the
Commission, which creates procedural challenges.
31. The Respect@Work Report recognised that engaging with the complexities of the
court system can be difficult and costly for applicants and representative
applications can provide a mechanism for genuine cases to be heard. It was also
noted that representative applications may be particularly valuable in circumstances
where a systemic problem affects a wide class of persons. Therefore, the
Respect@Work Report concluded that there are advantages to enabling
representative bodies to pursue unlawful discrimination matters in the federal courts
on behalf of others.
32. The Bill would remove the existing procedural barriers by ensuring that a
representative body that has lodged a complaint on behalf of one or more affected
persons in the Commission (a representative complaint) is able to make an
application to the federal courts under section 46PO of the AHRC Act if the
representative complaint is terminated. This would enable representative bodies to
continue to lead a representative complaint from the Commission in the federal
courts.
Costs protection provisions
33. The Bill would insert a cost protection provision in the AHRC Act to provide greater
certainty to parties during court proceedings in relation to costs. This amendment
would achieve the policy objective of recommendation 25 of the Respect@Work
Report.
34. The Respect@Work Report heard that the risk of adverse cost orders acts as a
disincentive to applicants considering pursuing their sexual harassment matters in
the federal courts. It was noted the current practice, in which costs follow the event
(despite a broad judicial discretion to award costs in any manner seen fit), means
that applicants may be liable for their own costs, as well as those of the other party,
8
if they are unsuccessful. This may deter applicants from initiating court proceedings
and creates access to justice concerns, particularly for vulnerable members of the
community. In response, the Respect@Work Report recommended that a cost
protection provision be inserted in the AHRC Act to provide greater certainty for
applicants.
35. The Bill adopts a 'cost neutrality' approach and would provide that, as a default
position, each party would bear their own costs in an unlawful discrimination
proceeding. However, the courts would retain discretion to depart from this default
position and make cost orders where they consider it just. In considering whether to
depart from the default position, the federal courts must have regard to a number of
factors, including the financial circumstances of each of the parties to the
proceedings and whether any party to the proceedings has been wholly unsuccessful
in the proceedings.
36. This amendment would provide applicants with a greater degree of certainty over the
costs they would be required to pay if they commence legal proceedings, while also
providing flexibility for the federal courts to award costs for either party depending
on the circumstances.
37. This approach differs from the model recommended in the Respect@Work Report,
which proposed an amendment based on section 570 of the Fair Work Act. The Fair
Work Act 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. The Bill adopts a 'cost neutrality' approach in line with the
Commission's updated position on costs in the Commission's Free and Equal
Position Paper. This approach is preferred because it provides applicants and
respondents with greater certainty around the costs they would be required to pay if
they commence legal proceedings. It also provides greater flexibility to award costs
to successful parties if it would be appropriate to do so, rather than only considering
the conduct of the parties.
Public sector reporting to WGEA
38. The Bill would amend the WGE Act to bring the Commonwealth public sector into
line with the private sector by requiring Commonwealth public sector reporting to
WGEA. This amendment would implement recommendation 43(a) of the
Respect@Work Report for the Commonwealth public sector. Like private sector
9
organisations, the public sector reporting program will require agencies to report
annually on six gender equality indicators.
Victimisation
39. The Bill would clarify that victimising conduct can form the basis of a civil action
for unlawful discrimination in addition to a criminal complaint under the AD Act,
DD Act and RD Act. This would implement recommendation 2 of the Senate
Education and Employment Legislation Committee's report on the Respect at Work
Bill 2021 and achieve consistency across Commonwealth anti-discrimination Acts.
40. The Respect at Work Act 2021 amended the SD Act and the AHRC Act to clarify
that victimisation can form the basis of both a civil action for unlawful
discrimination as well as a criminal offence under the SD Act. This amendment
sought to address judicial uncertainty as to whether the federal courts had
jurisdiction to hear an application of unlawful discrimination under the AHRC Act,
where the alleged unlawful discrimination is an act of victimisation brought as a
civil action.
41. The Bill would make further amendments to clarify that victimisation can also form
the basis of a civil action for unlawful discrimination under the AD Act, DD Act and
RD Act. This is consistent with the amendments to the SD Act made by the Respect
at Work Act 2021 and would clarify the same judicial uncertainty that arises in
relation to those Acts.
Timeframes for making a complaint
42. The Bill would also amend the discretionary grounds on which a complaint made
under the AD Act, DD Act and RD Act may be terminated by the President of the
Commission. This is consistent with the amendments to the SD Act made by the
Respect at Work Act 2021. Instead of the current six months, a complaint under the
AD Act, DD Act or RD Act could only be terminated if it is made more than 24
months after the alleged unlawful conduct took place.
43. This timeframe was recommended in the Respect@Work Report in relation to the
SD Act to reduce procedural barriers arising from complainants being delayed in
making a complaint under the SD Act. The President already has and would still
maintain their discretion to consider a complaint beyond this timeframe. However,
this change would reassure complainants under these other Acts that their
complaints would not be dismissed within 24 months of the conduct.
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Amending the objects of the SD Act
44. The Bill would amend the existing object clause at paragraph 3(e) of the SD Act to
state that an object of the SD Act is to 'achieve substantive equality between men
and women'. This amendment would ensure that recommendation 16(a) of the
Respect@Work Report is implemented.
45. The Bill would also insert a new objects clause to make clear that an object of the
SD Act is to eliminate, so far as is possible, discrimination involving workplace
environments that are hostile on the ground of sex. This would ensure alignment
with the new provisions inserted by the Bill to implement recommendation 16(c) of
the Respect@Work Report.
Sex-based harassment
46. The Bill would amend section 28AA of the SD Act, which prohibits harassment on
the ground of sex, to remove the reference to conduct of a 'seriously' demeaning
nature. This would ensure that the provision does not impose an unnecessarily high
threshold on applicants and implement the intent of recommendation 16(b) of the
Respect@Work Report.
FINANCIAL IMPACT
47. N/A
REGULATORY IMPACT STATEMENT
48. Consistent with the Government's Regulatory Impact Analysis requirements, the
Respect@Work Report has been certified by the Attorney-General's Department as
meeting the requirements of a Regulatory Impact Statement (OBPR22-02584). The
Respect@Work Report was tabled in the House of Representatives on 5 March 2020
and is available online at: https://humanrights.gov.au/our-work/sex-
discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-
2020.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill
2022
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
2. This Bill would amend the Australian Human Rights Commission Act 1986 (AHRC
Act), Sex Discrimination Act 1984 (SD Act), Workplace Gender Equality Act 2012
(WGE Act), Disability Discrimination Act 1992 (DD Act), Racial Discrimination Act
1975 (RD Act) and Age Discrimination Act 2004 (AD Act). It would also make
consequential amendments to the Federal Circuit and Family Court of Australia Act
2021, Federal Court of Australia Act 1976 and Inspector-General of Intelligence and
Security Act 1986.
3. The Australian Human Rights Commission (the Commission) released the
Respect@Work: National Inquiry into Sexual Harassment in the Workplace (2020)
Report (Respect@Work Report) on 5 March 2020. This Bill would implement 7 of the
remaining recommendations of the Respect@Work Report, in addition to making
further amendments to refine and strengthen the legal and regulatory frameworks
relating to sexual harassment and discrimination in Australia. As part of implementing
these recommendations, the Bill would also expand the role of the Commission in
relation to preventing sexual harassment and other forms of sex discrimination. This
suite of reforms is critical for ensuring safer, respectful and more equitable Australian
workplaces for everyone.
4. The Bill would amend the existing object clause at paragraph 3(e) of the SD Act to
state that an object of the SD Act is to 'achieve substantive equality between men and
women'. It would also insert a new objects clause to make clear that an object of the
SD Act is to eliminate, so far as is possible, discrimination involving subjecting a
person to a workplace environment that is hostile on the ground of sex.
5. The Bill would amend section 28AA of the SD Act, which prohibits harassment on the
ground of sex, to remove the reference to conduct of a 'seriously' demeaning nature.
This would ensure that the provision does not impose an unnecessarily high threshold
for a finding of sex-based harassment to be successful.
6. A new provision in Division 3 of Part II of the SD Act would be inserted to prohibit a
person subjecting another person to a workplace environment that is hostile on the
12
ground of sex. While the courts have determined that conduct that results in a hostile
work environment can be captured through existing provisions of the SD Act, this is
not well understood or recognised by employers and persons conducting a business or
undertaking (PCBUs). This amendment would provide clarity and certainty to the law
and set clear boundaries on acceptable conduct in a workplace.
7. This Bill would insert provisions into new Part IIA of the SD Act to introduce a
positive duty on all employers and PCBUs to take reasonable and proportionate
measures to eliminate, as far as possible, certain discriminatory conduct, including
sexual harassment.
8. The AHRC Act would be amended to enable the Commission to monitor and assess
compliance with the positive duty in the SD Act. The Bill would confer a number of
education and capacity-building functions on the Commission to ensure that
employers and PCBUs are supported to meet their obligations and achieve compliance
with the positive duty. The Bill would also confer functions on the Commission to
enforce compliance with the positive duty when necessary, including options to
conduct inquiries, issue compliance notices, apply to the federal courts for an order to
direct compliance with the compliance notice, and enter into enforceable undertakings.
9. The Bill would insert new Division 4B into Part II of the AHRC Act to provide the
Commission with a broad inquiry function to inquire into any matter that may relate to
systemic unlawful discrimination.
10. The AHRC Act would be amended to allow a representative body that has lodged a
complaint on behalf of at least one person in the Commission (a representative
complaint) to make an application to the federal courts under section 46PO of the
AHRC Act if the representative complaint is terminated. This would enable
representative bodies to continue to lead a representative complaint from the
Commission to the federal courts.
11. The Bill would insert a cost protection provision in the AHRC Act to provide greater
certainty to parties during court proceedings in relation to costs. The Bill adopts a
'cost neutrality' approach and would provide that, as a default position, each party
would bear their own costs in unlawful discrimination proceedings. However, the
federal courts would retain discretion to depart from this default position and make
orders as to costs where they consider it just to do so.
12. The Bill would amend the WGE Act to bring the Commonwealth public sector into
line with the private sector by requiring Commonwealth public sector reporting to the
Workplace Gender Equality Agency (WGEA). Like private sector organisations, the
public sector reporting program will require agencies to report annually on six gender
equality indicators.
13
13. The Bill would clarify that victimising conduct can form the basis of a civil action for
unlawful discrimination in addition to a criminal complaint under the AD Act, DD Act
and RD Act. This is consistent with the amendments to the SD Act made by the Sex
Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at
Work Act 2021).
14. The Bill would also amend the discretionary grounds on which a complaint made
under the AD Act, DD Act and RD Act may be terminated by the President of the
AHRC. This is consistent with the amendments to the SD Act made by the Respect at
Work Act 2021. Instead of the current six months, a complaint under the AD Act, DD
Act or RD Act could only be terminated if it is made more than 24 months after the
alleged unlawful conduct took place.
Human rights implications
15. This Bill engages the following rights:
a. the right to equality and non-discrimination in Article 2, 16 and 26 of the
International Covenant on Civil and Political Rights (ICCPR)
b. the right to an effective remedy in Article 2(3) of the ICCPR and Article 2 of the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)
c. the right to freedom of expression in Article 19 of the ICCPR
d. the right to work and rights in work in Article 6(1) and 7 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 11 of
the CEDAW
e. the right to the highest attainable standard of physical and mental health in Article
12 of the ICESCR, and
f. the right to privacy and reputation in Article 17 of the ICCPR.
Right to equality and non-discrimination
16. Article 2, 16 and 26 of the ICCPR protect the right to equality and non-discrimination
by providing that all individuals have the same rights and deserve the same level of
respect, regardless of their personal attributes such as race, sex, disability, age or
colour (among other attributes).
17. Item 1 in Schedule 8 engages the right to equality and non-discrimination by
amending the objects of the SD Act to include achieving 'substantive equality between
women and men'. This amendment would ensure that the SD Act is underpinned by a
14
comprehensive understanding of equality which would guide the judiciary's
interpretation of the SD Act.
18. Items 1-6 in Schedule 1 insert a new provision into the SD Act which makes it
unlawful for a person to subject another person to a workplace environment that is
hostile on the ground of sex. In prohibiting conduct that results in a workplace
environment being offensive, intimidating or humiliating to people of one sex, the Bill
captures conduct which is often the precursor to sexual harassment. The amendments
assist in setting clear boundaries in the workplace on acceptable conduct and promotes
the right to equality and non-discrimination.
19. Item 8 in Schedule 2 introduces a positive duty on all employers and PCBUs to take
reasonable and proportionate measure to eliminate, as far as possible, certain
discriminatory conduct, including sexual harassment. These amendments promote the
right to equality and non-discrimination by requiring employers and PCBUs to
proactively prevent discrimination and harassment occurring in their workplaces.
20. Part 2 of Schedule 2 provides the Commission with powers to monitor and assess
compliance with the positive duty in the SD Act. These amendments are designed to
ease the burden on individuals by enabling the Commission to initiate an inquiry into a
person's compliance with the positive duty, rather than relying on individuals making
complaints. This enforcement mechanism promotes equality and non-discrimination
by encouraging employers to take their legal obligations seriously.
21. Items 1-15 in Schedule 6 require Commonwealth public sector agencies to report
annually to WGEA against gender equality indicators, including remuneration
between women and men. This would enable employers to clearly see their
performance from year to year, and compare their progress in achieving gender
equality with other employers across both the public and private sectors. In doing so,
these amendments promote greater transparency, gender equality and non-
discrimination.
Right to effective remedy
22. Article 2(3) of the ICCPR and Article 2 of the CEDAW provides the right to an
effective remedy for persons who have suffered human rights violations by Australian
authorities, as well as persons who have suffered discrimination perpetrated by
Australian authorities. The UN Human Rights Committee has stated that the right to
an effective remedy encompasses an obligation to bring justice to perpetrators of
human rights abuses, including discrimination, and also to provide appropriate
reparation to the persons who have suffered human rights abuses.
23. Items 1-7 in Schedule 1 will ensure that people who are subjected to a hostile
workplace environment on the ground of sex can lodge a complaint under the AHRC
15
Act, even if the specific conduct was not directed at them. The AHRC may investigate
and attempt to conciliate such complaints. Where a complaint cannot be conciliated,
an individual may initiate proceedings in the federal courts, and therefore exercise the
right to an effective remedy.
24. Items 1-9 in Schedule 4 amend the AHRC Act to allow a representative body that has
lodged a complaint on behalf of one or more affected persons in the Commission
(a representative complaint) to make an application to the federal courts under section
46PO of the AHRC Act if the representative complaint is terminated. This will enable
representative bodies to continue to lead a representative complaint from the
Commission in the federal courts. By removing procedural barriers for representative
bodies to initiate court proceedings, this amendment promotes access to effective
remedies.
25. Items 1-11 in Schedule 5 engage the right to an effective remedy by inserting a cost
protection provision in the AHRC Act. This amendment will provide applicants with a
greater degree of certainty over the costs they would be required to pay if they
commence legal proceedings. This would increase access to justice and thereby the
right to an effective remedy, as applicants would be less likely to be deterred from
litigating if they are not at risk of paying a respondent's costs if unsuccessful.
Right to freedom of expression
26. The right to freedom of expression is prescribed in Article 19 of the ICCPR and
extends to any medium, including written and oral communications. This includes not
only favourable information or ideas, but also unpopular opinions including those that
may offend or shock (subject to limitations). Consistent with these limitations, the
right is not absolute, allowing it to be subject to certain restrictions, where restrictions
are necessary for the respect of the rights of others or for the protection of national
security or public order or of public health or morals. Any such restrictions must be
prescribed by law and be reasonable, necessary and proportionate to achieving a
legitimate objective.
27. Items 1-7 in Schedule 1, which prohibit subjecting a person to a hostile workplace
environment, may limit the conduct a person may engage in, and thereby limit the
right to freedom of expression. Item 3 in Schedule 8, which lowers the requisite
threshold for making a complaint of sex-based harassment, may also have the
consequence of limiting the conduct which a person engages in, including forms of
expression.
28. These limitations have a clear legal basis which is accessible and precise in legislation
to ensure people are aware of the legal consequences of their actions.
16
29. Further, these limitations on the right of expression are in pursuit of a legitimate
objective: protecting workers from sexual harassment and discrimination. The
connection between the limitation and the legitimate objective is reasonable and
proportionate as the reforms are based on the comprehensive evidence provided in the
Respect@Work Report on measures to prevent and address workplace sexual
harassment.
30. The limitation on the right to freedom of expression is reasonable, necessary and
proportionate to the objective. The extent to which the right to freedom of expression
is limited is the least restrictive way of achieving the objective. It is safeguarded, in
relation to sex-based harassment and hostile workplace environments, with an
objective reasonable person test and the requirement to consider any relevant
circumstances. The targeted focus of this legislation would ensure that the right to
freedom of expression is only limited in instances of conduct that the legislation
appropriately aims to address: harassment on the ground of sex and workplace
environments that are hostile on the ground of sex.
31. Therefore, the limits on the right to freedom of expression contained in this Bill are
necessary, reasonable and proportionate to achieve the legitimate objective of
preventing and addressing sexual harassment and discrimination in the workplace.
Right to work and rights in work
32. Articles 6(1) and 7 of the ICESCR and Article 11 of the CEDAW provide the right to
work and rights in work, including the right of everyone to the opportunity to gain his
or her living by work which he or she freely chooses or accepts. It also includes the
right to enjoyment of just and favourable conditions of work which ensures safe and
healthy working conditions, and the right to protection of health and safety in working
conditions.
33. Integral to the right to gain a living by work and the enjoyment of just and favourable
conditions of work is protection against sexual harassment and discrimination in the
workplace. Items 1-7 in Schedule 1 seek to bolster this protection by introducing a
new prohibition to capture conduct which results in an offensive, intimidating or
humiliating environment for a person in a workplace. This has the consequence of
providing a safer and healthier workplace and working conditions for all workers as
the existence of these environments can increase the risk of people experiencing other
forms of unlawful discrimination, such as sexual harassment.
34. Similarly, the positive duty in the SD Act (introduced by item 8 in Schedule 2) seeks
to further strengthen the right to just and favourable conditions of work by requiring
employers and PCBUs to proactively prevent discrimination and harassment in their
workplaces in order to achieve compliance with the SD Act. This may involve
implementing policies and procedures, collecting and monitoring data, providing
17
appropriate support to workers and employees and delivering training and education
on a regular basis (if these elements are not already in place).
35. The right to work and rights in work are therefore promoted by the Bill by improving
conditions in employment in the context of discrimination in the workplace, and
reinforcing protections for health and safety in the workplace in the context of sexual
harassment and discrimination.
Right to physical and mental health
36. Article 12 of the ICESCR requires that State Parties to the Covenant recognise the
right of everyone to the enjoyment of the highest attainable standard of physical and
mental health. The UN Committee on Economic, Social and Cultural Rights has stated
that the right to health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life, extending to underlying
determinants of health such as safe and healthy working conditions.
37. As noted in the Respect@Work Report, sexual harassment in the workplace can have
significant negative effects on an individual's health and wellbeing. The Commission
noted in the Respect@Work Report that 'Australians, across the country, are suffering
the financial, social, emotional, physical and psychological harm associated with
sexual harassment.'1 Workplace sexual harassment can have negative effects on the
general wellbeing, mental health and physical health of the person harassed.
38. This Bill promotes the right to the enjoyment of the highest attainable standard of
physical and mental health by introducing a positive duty in the SD Act through item
8 in Schedule 2. This would require employers and PCBUs to take reasonable and
proportionate measures to eliminate, as far as possible, certain discriminatory conduct,
including sexual harassment. By enabling the Commission to initiate an inquiry into a
person's compliance with the positive duty, the Bill eases the burden of enforcing the
law from the individual, which is beneficial for a person's emotional and
psychological health.
39. The Respect@Work Report recognised that engaging with the complexities of the
court system can be difficult and may come with a high emotional toll for individuals.
Given this, items 1-9 in Schedule 4, which enable representative bodies to bring
representative claims to the federal courts on behalf of affected individuals, promote
the right to physical and mental health by ensuring individuals can access an effective
remedy in a way that avoids the emotional burden of bringing action in their own
name.
1Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in the Workplace
(Report, 29 January 2020) 13 ('Respect@Work Report').
18
Right to privacy and reputation
40. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference in their privacy. Privacy guarantees a right to secrecy from the
publication of personal information. For interference with privacy not to be arbitrary,
it must be in accordance with the provisions, aims and objective of the ICCPR and
should be reasonable in the particular circumstances. Reasonableness in this context
incorporates notions of proportionality to the end sought and necessity in the
circumstances.
41. Part 2 of Schedule 2 would provide the Commission with powers to monitor and
assess compliance with the positive duty in the SD Act. This includes powers to
conduct inquiries into a person's compliance with the positive duty, obtain
information and documents relevant to an inquiry, issue compliance notices and enter
into enforceable undertakings. This amendment would also enable the Commission to
produce and publish reports and make recommendations based on such information.
Item 8 of Schedule 3 would enable the Commission to utilise these same information
gathering powers when conducting inquiries into systemic unlawful discrimination.
These powers would have the consequence of potentially interfering with a person's
right to privacy and reputation.
42. The ability of the Commission to collect this information is considered appropriate
and necessary to facilitate the effective administration of these amendments. Given the
seriousness of sexual harassment, it is essential that the Commission is able to easily
access relevant information and documents to effectively conduct its inquiries. The
limits placed on these rights are also balanced by safeguards requiring the
Commission to give a person subject to an inquiry the opportunity to make
submissions. Furthermore, any information collected through these processes will be
handled in accordance with the Commission's privacy obligation under legislation
such as the Privacy Act 1988 (Privacy Act).
43. Items 1-15 in Schedule 6 also engage the right to privacy as they enable WGEA to
collect data from Commonwealth public sector employers, including on employee
remuneration. WGEA's collection and use of this information will be done for a
lawful purpose that is reasonably necessary for, or directly related to, its functions
under the WGE Act. Additionally, WGEA handles personal information in
compliance with obligations under the Privacy Act.
Conclusion
44. The Bill is compatible with human rights because it 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.
19
NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides that the Bill, when passed, may be cited as the
Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work)
Act 2022.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision of the Bill, as set out
in the table.
3. Clauses 1 to 3 and anything in the Bill not elsewhere covered in the table commence
on the day the Bill receives Royal Assent.
4. The provisions in Schedule 1 (hostile workplace environments), Part 1 of Schedule 2
(duty) and Schedules 3 to 8 (inquiries into systemic unlawful discrimination,
representative actions, costs, amendments to the WGE Act, victimisation and other
amendments) commence the day after the Bill receives Royal Assent.
5. The provisions in Division 1 of Part 2 of Schedule 3, which provide the Commission
with functions to prepare and publish guidance materials relating to the positive
duty, commence the day after the Bill receives Royal Assent. However, the
provisions in Division 2 of Part 2 of Schedule 2 (compliance) commence the day
after the end of 12 months beginning on the day the Bill receives Royal Assent. This
would mean that the Commission's new functions to monitor and assess compliance
with the positive duty would commence 12 months after the rest of the Bill, to
enable the Commission time to prepare and publish guidance materials on the
positive duty and establish its new compliance functions. This would also provide
employers and PCBUs sufficient time to understand their obligations under the
positive duty and implement changes, if necessary.
20
Clause 3 - Schedules
Schedule 1 - Hostile workplace environments
Sex Discrimination Act 1984
6. This schedule would clarify that subjecting another person to a hostile workplace
environment on the ground of sex is unlawful by inserting an express prohibition in
Division 3 of Part II of the SD Act. These amendments would implement
recommendation 16(c) of the Respect@Work Report, which recommended
expressly prohibiting the creation of a hostile, intimidating, offensive or intimidating
workplace environment in the SD Act.
7. The Respect@Work Report found that sexual harassment may occur where a
workplace environment or culture is sexually charged or hostile, even if the conduct
is not directed at a particular person.2 In such an environment, people of one sex are
made to feel uncomfortable or excluded by the workplace environment. The
Respect@Work Report noted that conduct such as displaying obscene or
pornographic materials, general sexual banter, or innuendo and offensive jokes may
indicate the existence of a hostile work environment.
8. The concept of a hostile workplace environment has been explored in Australian
case law. For example, in Johanson v Michael Blackledge Meats [2001] FMCA 6, a
hostile work environment was defined as 'conduct of a sexual nature in which
another person, whether the intended target or not, who has not sought or invited the
conduct, experiences offence, humiliation or intimidation and, in the circumstances,
a reasonable person would have anticipated that reaction.'3 The concept of a hostile
work environment has also been found to apply when a pattern of behaviour is
designed to exclude a person on the ground of sex and make them feel unwelcome
and uncomfortable.4 The primary difference between a hostile work environment
and other forms of unlawful conduct, such as sexual harassment, is that the conduct
is not directed towards a particular person, but results in a generally hostile
environment.
9. The creation of a hostile work environment has been found to be unlawful in
Australian jurisprudence under existing provisions, such as unlawful sex
discrimination and sexual harassment. In Horne v Press Clough Joint Venture
(1994) EOC 92-591, two women were employed as cleaners in a male dominated
workplace. In several of the rooms that the women were required to clean, there
were posters of naked and semi-naked women, described in the judgment as 'soft
2 Respect@Work Report (n 1) 458.
3 Johanson v Michael Blackledge Meats [2001] FMCA 6, [89].
4 See, eg, Hill v Water Resources Commission [1985] EOC 92-127.
21
porn.' The Western Australian Equal Opportunity Commission acknowledged that
'it is now well established that one of the conditions of employment is the quiet
enjoyment of it. That concepts includes ... not having to work in an unsought
sexually permeated work environment.' 5 The Commission found in the women's
favour and concluded that the prolific display of pornography in the women's
workplace amounted to sex discrimination and victimisation.
10. Further, in Hill v Water Resources Commission (NSW) [1985] EOC 92-127, the
complainant was subjected to numerous petty acts, including nuisance telephone
calls, and heavy handed and threatening jokes, that were not necessarily sexual in
nature. However, the New South Wales Equal Opportunity Tribunal concluded that
the complainant had experienced sexual harassment in the form of a continuing and
increasingly damaging hostile work environment. The situation was 'so serious and
so continuous as to affect adversely the terms and conditions of work'6 of the
complainant.
11. The Respect@Work Report found that while conduct that creates an intimidating,
hostile, humiliating or offensive environment for a person may be captured by the
existing provisions in the SD Act, there is limited judicial authority on this issue and
it is not clear that such conduct is unlawful in Australia.7 Therefore, the
Respect@Work Report recommended that expressly prohibiting such conduct in the
SD Act would provide clarity and certainty to the law and assist in setting clear
boundaries in the workplace on acceptable conduct.8
Item 1
12. This item would amend the long title of the SD Act to include hostile workplace
environments. This reflects the inclusion of the new provisions prohibiting hostile
work environments inserted by this schedule.
Item 2
13. This item would insert a new object in section 3(c) of the SD Act to state that an
object of the Act is 'to eliminate, so far as is possible, discrimination involving
subjecting persons to workplace environments that are hostile on the ground of sex.'
This ensures that the objects of the SD Act align with the new provision prohibiting
hostile work environments inserted by the Bill.
5 Horne v Press Clough Joint Venture (1994) EOC 92-591, 77, 175.
6 Hill v Water Resources Commission (n 4) (Barbour J, Thiering and Tracey).
7 Respect@Work Report (n 1) 460.
8 Ibid 461.
22
Item 3
14. This item would insert a definition for 'workplace' in subsection 4(1) of the SD Act
that aligns with the model WHS laws. This definition includes any place where a
worker goes, or is likely to be, while at work, such as corridors, lifts, lunchrooms
and bathrooms. It also includes places where work is performed from time to time,
even if there is no work being carried out at the place at a particular time.9 This
amendment will provide additional consistency between the model WHS laws and
the SD Act.
Item 4
Section 8A - Workplace environment that is hostile for 2 or more reasons
15. This item would insert new section 8A in the SD Act to ensure that new section 28M
(hostile workplace environments) covers conduct that may result in an offensive,
intimidating or humiliating workplace environment by reason of sex (or related
characteristics) and other matters, such as age or race.
16. New section 8A would provide that where section 28M defines a workplace
environment that is offensive, intimidating or humiliating by reason of sex (or
related characteristics), this includes a workplace environment that is offensive,
intimidating or humiliating for more than just that reason. 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.
17. This is the same concept that is applied in existing section 8 of the SD Act, which
provides that where certain provisions of the SD Act define unlawful discrimination
to mean the doing of an act by reason of a particular matter (such as sex), that
includes the doing of an act for more than just that reason. As Gordon J noted in
Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA at 702, 'the test of
discrimination is not whether the discriminatory characteristic is the "real reason" or
the "only reason" for the conduct but whether it is "a reason" for the conduct.'
Illustrative example of section 8A
18. 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
9See Explanatory Memorandum, Work Health and Safety Bill 2011 < Work Health and Safety Bill 2011 - Parliament of
Australia (aph.gov.au)>
23
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.
Item 5
Section 28M - Hostile workplace environments
19. New section 28M would provide that subjecting another person to a hostile
workplace environment on the ground of sex is unlawful, and sets out the meaning
of subjecting a person to a hostile workplace environment for the purposes of the
SD Act.
Unlawful discrimination
20. New subsection 28M(1) would provide that it is unlawful for a person to subject
another person to a workplace environment that is hostile on the ground of sex. This
means that subjecting another person to a hostile workplace environment is
'unlawful discrimination' for the purposes of the AHRC Act (see section 3(1)).
21. A person who believes they have been subjected to a hostile workplace environment
(an aggrieved person) could seek to address the conduct by lodging a complaint with
the Commission under section 46P of the AHRC Act. If the complaint cannot be
resolved in the Commission, the person may make an application to the federal
courts to resolve the matter.
First person and second person
22. New section 28M refers to the 'first person' and 'second person' rather than using
other terms, such as employer, employee, PCBU or worker. This is intended to
ensure the provision applies broadly in the workplace and can cover all types of
people who may impact, or be impacted by, a workplace environment, including
customers and clients.
23. However, the operation of paragraph 28M(2)(a) means that the prohibited conduct
must occur in a workplace where either the first person or the second person works.
This would ensure that the provision is appropriately connected to the workplace
given that the conduct must occur in the workplace of one person. It is not intended
that the provision would cover conduct that occurs between two customers, for
example, as the conduct is not occurring in either person's workplace.
24. For example, Max is an important client for a small real estate company and visits
the company's office twice a week to discuss property transactions. Max refuses to
24
engage with any female employees, remarking that 'women are airheads' and 'not
cut out for real estate.' Max also frequently makes derogatory remarks about the
physical appearance of the female employees and asks them why they 'even bother
to work when they should be at home taking care of their husbands.' One of the
female employees, Bec, lodges a complaint against Max on the basis that he is
subjecting her to a hostile work environment. In this example, a reasonable person
may anticipate the possibility that Max's conduct would result in a workplace
environment that is offensive, intimidating or humiliating for women by reason of
their sex. It is not relevant that Max is a client and is not working at the time as he
has engaged in conduct in Bec's workplace.
Reasonable person test
25. New section 28M(2)(c) requires an inquiry into whether a reasonable person, having
regard to all the circumstances, would have anticipated the possibility of the first
person's conduct resulting in the workplace environment being offensive,
intimidating or humiliating to a person of the sex of the second person. Similar to the
definition of sexual harassment in section 28A, this test does not require an
assessment of what the actual person who engaged in the conduct anticipated.
26. Instead, this test requires an objective assessment as to whether a reasonable
bystander would anticipate that the relevant conduct could result in a workplace
environment that would be offensive, intimidating or humiliating to a person of the
sex of the second person. 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 factors.
27. When considering what a reasonable person may have anticipated in the
circumstances, the decision-maker must consider, but is not limited to considering,
the circumstances provided for in subsection 28M(3). This includes (a) the
seriousness of the conduct; (b) whether the conduct was continuous or repetitive; (c)
the role, influence or authority of the person engaging in the conduct; and (d) any
other relevant circumstance. It is not intended that any or all of these circumstances
must be met for a hostile work environment to be successfully established.
28. Under paragraph 28M(3)(a), a circumstance to be considered is the seriousness of
the conduct. This can be a clear factor in assessing whether the conduct meets the
required level of 'offensive, humiliating or intimidating' and would be particularly
relevant where a single act or incident forms the basis of the complaint.
29. Under paragraph 28M(3)(b), a further circumstance to be considered is whether the
conduct was continuous or repetitive. This can be a key factor when assessing
25
whether conduct is 'offensive, humiliating or intimidating.' This would be
particularly relevant where one instance of the conduct may be perceived as less
serious in nature, but when repeated or continuous would have significant impacts. It
may also be relevant if the conduct has an ongoing impact, such as displaying
obscene or pornographic images. However, repetition is not required for conduct to
result in a hostile work environment.
30. Paragraphs 28M(3)(a) and (b) are modelled on existing considerations in paragraph
28AA(2)(e) and (f) of the SD Act (harassment on the ground of sex). Using these
terms would ensure consistency in the SD Act and enable relevant case law to be
applicable to these provisions.
31. Under paragraph 28M(3)(c), a decision-maker must consider the role, influence or
authority of the person engaging in the conduct. This recognises that people in
positions of authority, such as managers, supervisors and business owners, have
greater control or influence over a workplace environment than others.
32. The inclusion of paragraph 28M(3)(c) is also intended to provide appropriate limits
on the application of the provision to people who are bystanders. For example, if a
senior manager observes junior employees engaging in conduct that results in a
hostile workplace environment and fails to act or intervene, the senior manager's
conduct may also be contributing to the hostile workplace environment. However, it
is not intended that the provision would capture inaction by people in junior
positions or with limited influence and authority.
33. Further, under paragraph 28M(3)(d), any other relevant circumstance may be
considered. This could include aspects of the environment or culture in which the
conduct took place. For example, the type of work undertaken in the workplace,
whether the workplace is dominated by people of one sex or whether there have
been previous incidents of harassment and discrimination in the workplace.
'Offensive, humiliating or intimidating'
34. The meaning of the terms 'offended,' 'humiliated' and 'intimidated' are well
established in the Australian jurisprudence relating to sexual harassment and other
forms of discrimination.10 The terms are also used in related sections of the SD Act,
including sexual harassment (section 28A) and harassment on the ground of sex
10For examples, see Ewin v Vergara (No 3) [2013] FCA 1311; Johanson v Blackledge (2001) 163 FLR 58; Lee v Smith
[2007] FMCA 59; Kraus v Menzie [2012] FCA 3; Leslie v Graham [2002] FCA 32.
26
(section 28AA). The case law indicates that conduct must generally be serious or
repetitive to meet the threshold of being offensive, humiliating or intimidating.
'To a person of the sex of the second person'
35. New section 28M(2)(c) requires an inquiry into whether a reasonable person, having
regard to all the circumstances, would have anticipated the possibility of the first
person's conduct resulting in a workplace environment that is offensive, intimidating
or humiliating to a person of the sex of the second person. This means that the
assessment to be made is whether a reasonable person would anticipate that the
conduct would result in a hostile workplace environment for people of one sex in
general, rather than a particular person.
36. The operation of section 28M(2) would mean that the first person does not need to
have directed their conduct towards the second person or know them personally for
the conduct to be captured. It would also mean that the first person does not need to
anticipate that the second person would be impacted by the conduct. Instead, the
provision is intended to apply broadly in the workplace context and ensure that
workplaces are safe and respectful for any person who may come into contact with
them. This aligns with the overarching objectives of the SD Act and Respect@Work
Report, which include prohibiting and preventing unlawful sex discrimination in
areas of public life.
37. For example, a number of professional football players choose to display
pornographic images, some of which include violent slurs about women, in the male
locker room of their club. The players believe the locker room is private and do not
expect other people to see the images. The owners of the football club organise a
deep clean of the facilities ahead of the new season and a number of female cleaners
are required to clean the locker room. One of the cleaners, Aisha, lodges a complaint
on the basis that the players have engaged in conduct that resulted in a hostile
workplace environment. Aisha establishes that the players engaged in conduct in her
workplace and she was in the workplace after the conduct occurred (paragraphs
28M(2)(a) and (b)). In this example, a reasonable person may anticipate the
possibility that the players' conduct would result in a workplace that is offensive,
intimidating or humiliating for women by reason of their sex. It is not relevant that
the players did not anticipate that any women, including Aisha, would be impacted
by their conduct.
'By reason of sex'
38. The terms set out in paragraph 28M(2)(c) provide for the grounds or reasons for
which conduct will be covered under section 28M. These three related grounds will
ensure that the conduct that results in a hostile work environment on the ground of a
person's sex, as well as on the basis of a characteristic that relates to sex or that
27
society generally imputes to a particular sex, is covered. These concepts are used in
other provisions of the SD Act, including sex discrimination and harassment on the
ground of sex. It is also a common mechanism used in anti-discrimination laws in
Australia:
All Australian anti-discrimination statutes extend beyond specific attributes identified
in the legislation, to cover also characteristics that appertain generally to people with
an attribute, and characteristics that are generally imputed to people with a particular
attribute.11
39. Subparagraph 28M(2)(c)(i) requires that the prohibited conduct be offensive,
intimidating or humiliating by reason of the sex of the second person. This could
apply in circumstances where the conduct is linked to people of one sex in a general
sense. For example, displaying pornographic and degrading images of women in the
workplace may be humiliating for female employees on the basis that the images
perpetuate a degrading view of women. Similarly, male employees may be offended
by comments about men not requiring parental leave because 'children only need
their mothers' and men are 'irresponsible parents.'
40. Subparagraph 28M(2)(c)(ii) requires that the prohibited conduct be offensive,
intimidating or humiliating by reason of a characteristic (or characteristics) that
appertains generally to people of the second person's sex. This could apply in
circumstances where conduct is based on characteristics that are associated with
members of that person's sex, such as anatomical attributes. For example, female
employees may be humiliated by demeaning remarks about taking sanitary items to
the bathroom or taking medication for menopause symptoms.
41. Subparagraph 28M(2)(c)(iii) requires that the prohibited conduct be offensive,
intimidating or humiliating by reason of a characteristic (or characteristics) that is
generally imputed to people of a particular sex. This could include conduct that
relates to gendered stereotypes, including characteristics generally imputed to one
sex or the other by society. For example, female employees may be offended by
comments affirming gender norms or stereotypes, such as women needing to be 'at
home, taking care of the children' or responsible for cleaning the office.
42. In practice, there may be overlap and intersections between the three grounds as a
person's conduct may result in an offensive, intimidating or humiliating
environment due to a combination of the person's sex and characteristics. However,
a complaint need only meet one of these grounds. In practice, it may also be difficult
to distinguish between these grounds in some circumstances. However, this does not
11Anna Chapman, 'Australian Anti-Discrimination Law, Work, Care and Family' (Working Paper No. 51,
Centre for Employment and Labour Relations Law, The University of Melbourne, 2013) 8.
28
prevent a complaint under this provision and instead reflects the forms of gender
inequality that the SD Act was designed to address.
'Conduct'
43. The definition of 'conduct' in subsection 28M(4) provides that, for the purposes of
section 28M, conduct includes (but is not limited to) making a statement orally or in
writing and not just physical acts, such as gestures. This provision would clarify that
conduct could include spoken statements, written letters, text messages, emails or
social media messages.
'2 or more reasons'
44. The note after subsection 28M(2) prompts users of the legislation to consider the
operation of new section 8A inserted by this Bill. New section 8A would operate to
ensure that conduct that may result in an offensive, intimidating or humiliating
workplace environment would be captured by new section 28M when it is by reason
of many factors, so long as sex (or related characteristics) is one.
Illustrative examples of section 28M
45. Ella is a first-year apprentice at a large plumbing firm and is the only woman
employed by the business. Ella's manager, Tom, and the other male apprentices
regularly make derogatory comments about the physical appearance of female
customers. Tom frequently shows the male apprentices sexualised images on his
computer and loudly discusses intimate details of his personal life. Tom also
regularly changes out of his work overalls and exposes himself to Ella and the other
apprentices. Ella lodges a complaint against Tom on the basis that he is subjecting
her to a hostile workplace environment. Ella establishes that Tom is engaging in
conduct in a workplace where they both work and she is in the workplace at the
same time as the conduct occurs (paragraphs 28M(2)(a) and (b)). In this example, a
reasonable person may anticipate the possibility of Tom's conduct resulting in a
workplace environment that is offensive, intimidating or humiliating for women by
reason of their sex. Tom's seniority and the repetitive nature of his conduct are
likely to be relevant considerations (subsection 28M(3)).
46. Ali and Josh are the only male dance instructors at a ballet academy. Ali and Josh's
female manager, Megan, excludes them from team discussions and social activities
because they are men and she 'has no interest in their views.' Megan and the other
female instructors regularly hide female underwear or pornography in Ali and Josh's
bags 'as a joke.' Megan also refuses to provide Ali and Josh with male changing
facilities (although there are female specific facilities). Ali and Josh lodge a
complaint against Megan on the basis that she is subjecting them to a hostile
workplace environment. Ali and Josh establish that Megan is engaging in conduct in
a workplace where they both work and they are in the workplace at the same time as
29
the conduct occurs (paragraphs 28M(2)(a) and (b)). In this example, a reasonable
person may anticipate the possibility that Megan's conduct would result in a
workplace that is offensive, intimidating or humiliating for men by reason of their
sex. Megan's seniority and the seriousness of the conduct are likely to be relevant
considerations (subsection 28M(3)).
Item 6
47. This item would amend section 48 of the SD Act to ensure the functions of the
Commission include subjecting a person to a workplace environment that is hostile
on the ground of sex. These amendments would enable the Commission to exercise
the same functions in relation to hostile workplace environments as it may in
relation to sexual harassment and harassment on the ground of sex.
48. The amendment to paragraph 48(1)(gaaa) would ensure that the Commission can, on
its own initiative or when requested by the Minister, report to the Minister as to the
laws that should be made by the Parliament, or action that should be taken by the
Commonwealth, on matters relating to discrimination involving subjecting a person
to a workplace environment that is hostile on the ground of sex.
49. The amendment to paragraph 48(1)(gaa) would ensure the Commission can prepare
and publish guidelines for the avoidance of discrimination involving subjecting a
person to a workplace environment that is hostile on the ground of sex.
50. The amendment to paragraph 48(1)(gc) would ensure the Commission can intervene
in court proceedings that involve issues of discrimination involving subjecting a
person to a workplace environment that is hostile on the ground of sex if the
Commission considers it appropriate to and with the leave of the court and subject to
any conditions imposed by the court.
30
Schedule 2 - Positive duty
Part 1 - Duty
Sex Discrimination Act 1984
51. This schedule would insert new Part IIA in the SD Act, which introduces a positive
duty on employers and PCBUs to eliminate, as far as possible, certain discriminatory
conduct in the employment context. These amendments would implement
recommendation 17 of the Respect@Work Report, which recommended that the
SD Act be amended 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.
52. The Respect@Work Report found that the current complaints-based framework
provided by the SD Act is not effectively preventing sexual harassment from
occurring. It was noted that rates of sexual harassment are increasing under the
current framework, while rates of reporting have decreased.12 This suggests that
many individuals do not have confidence in the existing systems and
complaint-handling functions to effectively respond to an incident or complaint.
53. The Respect@Work Report also found that the model WHS laws, which impose a
positive duty on PCBUs to prevent sexual harassment,13 were ineffective in relation
to sexual harassment. Under the model WHS laws, a PCBU has a primary duty of
care to ensure, so far as is reasonably practicable, the physical and psychological
health and safety of workers.14 However, the Respect@Work Report concluded that
WHS laws are underutilised15 and have historically focused on physical harm.16 It
was also noted that WHS regulators have adopted inconsistent approaches to
addressing workplace sexual harassment matters17 and psychological risks receive
less attention.18
54. The Respect@Work Report noted that the introduction of a positive duty on
employers in the SD Act would shift the emphasis from a complaints-based model to
one where employers must continuously assess and evaluate whether they are
meeting the requirements of the duty.19 This would provide employers with greater
incentive to take proactive and preventative measures to comply with the duty and
shift the focus away from individuals making complaints. The Respect@Work
12 Respect@Work Report (n 1) 479.
13 Ibid 31.
14 Work Health and Safety Act 2011 (Cth) s 19.
15 Respect@Work Report (n 1) 443.
16 Ibid 480.
17 Ibid 443.
18 Ibid 480.
19 Ibid 479.
31
Report also concluded that a positive duty would promote accountability and assist
in encouraging a continuous improvement model for employers in how they address
sexual harassment.20
55. The Respect@Work Report also noted that the human rights frameworks and WHS
frameworks have different foundations and advantages. The WHS duty, as it relates
to sexual harassment, is focused on psychological health more broadly and frames
sexual harassment as a safety risk. Conversely, a positive duty in the SD Act would
have a more specific and targeted focus on sexual harassment in the context of other
forms of discrimination and broader systemic issues.21
56. The Respect@Work Report recognised the potential concerns around duplication
and overlap between the existing model WHS laws and the recommended positive
duty in the SD Act. However, the Respect@Work Report concluded that, as
employers already have responsibilities to prevent sexual harassment to ensure they
are not held vicariously liable under the SD Act and have positive duties under WHS
laws, the positive duty would not create a substantially new or increased burden for
employers.22 The Commission also observed that the duties would ultimately work
in a mutually reinforcing way.23
Items 1 - 4
57. These items would amend sections 10 and 11 of the SD Act to provide for
concurrent operation between the SD Act and state and territory work health and
safety laws. Sections 10 and 11 of the SD Act provide for the concurrent operation
of certain state and territory laws alongside the SD Act. They also clarify that
multiple actions by complainants under both state or territory and Commonwealth
legal frameworks are not generally possible where those frameworks cover the same
matters.
Concurrent operation
58. Items 1 and 3 would amend subsections 10(2) and 11(2) of the SD Act to insert a
reference to 'work health and safety' laws in each of those subsections. Subsections
10(2) and 11(2) provide that sections 10 and 11 relate to certain state or territory
laws, being laws that deal with discrimination on the grounds covered by the SD
Act: sex, sexual orientation, gender identity, intersex status, marital or relationship
status, pregnancy or potential pregnancy, breastfeeding or family responsibilities. By
adding 'work health and safety' to subsections 10(2) and 11(2), the Bill would
20 Ibid 479.
21 Ibid 480.
22 Ibid 479.
23 Ibid 480.
32
expand the scope of sections 10 and 11 to also relate to state and territory work
health and safety laws.
59. The model WHS laws require PCBUs to provide a safe working environment for
workers, so far as is reasonably practicable.24 This includes the obligation to take
positive steps to prevent and, if necessary, address conduct that involves subjecting a
worker to a hostile work environment. In addition, under the model WHS laws,
sexual harassment in the workplace is recognised as a hazard and risk to health and
safety. The positive duty in the model WHS laws require PCBUs to ensure, so far as
reasonably practicable, the health and safety of workers and other persons to ensure
they are not put at risk from work carried out as part of the business or
undertaking.25
60. As WHS in Australia is a shared responsibility, each jurisdiction is responsible for
regulating and enforcing WHS laws in their own jurisdictions, and each jurisdiction
has their own regulator. While each regulator has their own policies and procedures,
WHS regulators recognise the need for a nationally consistent approach to
compliance and enforcement of WHS laws. WHS laws are enforced by WHS
regulators and non-compliance can constitute a criminal offence. By contrast,
anti-discrimination laws are largely enforced through individual complaints (noting
many human rights bodies also have inquiry powers and compliance functions) on a
civil basis.
61. Subsections 10(3) and 11(3) provide that the SD Act is not intended to exclude or
limit the operation of state or territory laws - being laws that refer to discrimination
on the aforementioned grounds, or work health and safety - that are capable of
operating concurrently with the SD Act. This provision would clarify that the
Commonwealth does not intend to 'cover the field' or displace the operation of state
or territory laws, if they are capable of operating concurrently with the SD Act. This
is particularly relevant given that other amendments in the Bill are likely to result in
greater overlap between the SD Act and WHS frameworks:
• a prohibition on subjecting persons to a hostile work environment
(Schedule 1, new section 28M), and
• a positive duty requiring employers and PCBUs to take reasonable and
proportionate measures to eliminate, so far as possible, certain forms of
discriminatory conduct (noting sex discrimination is not covered by the
model work health and safety laws) (Schedule 2, new section 47C).
62. While regulation of sexual harassment has consistently been a feature of both the
anti-discrimination and work health and safety jurisdictions, in recognition that the
SD Act would include new provisions that overlap more closely with the model
24 Work Health and Safety Act 2011 (n 14) s 19.
25 Ibid s 19.
33
WHS laws as a result of this Bill, it is important to clarify that the model WHS laws
would not be displaced by the SD Act and could operate concurrently with the
SD Act.
63. This would clarify, for example, that a work health and safety regulator in a state or
territory could investigate a sexual harassment matter in a workplace
notwithstanding that an individual could make a complaint of sexual harassment
(which is unlawful under section 28B of the SD Act) to the Commission under the
AHRC Act in relation to that same conduct. In addition, a work health and safety
regulator in a state or territory could investigate the matter notwithstanding that the
Commission could also initiate an inquiry into the sexual harassment if they
considered it may relate to systemic unlawful discrimination. In practice, the
Commission would engage in early and clear communication with relevant state and
territory regulators to ensure there was not duplication of efforts and to support
cooperation between them.
Multiple actions
64. Subsections 10(4) and 11(4) of the SD Act, as amended by this Bill, would provide
that where a state or territory law (relating to discrimination or work health and
safety) deals with a matter that is also dealt with by the SD Act, a person cannot
make a complaint under both avenues. If they have made a complaint or taken
certain other action in relation to the matter under the relevant state or territory law,
they cannot also make a complaint under the AHRC Act (where they would
otherwise be entitled to).
65. As the model WHS laws do not provide for equivalent individual complaints to be
made to a WHS regulator, subsections 10(4) and 11(4) will not have any impact on
individuals by virtue of the addition of 'work health and safety' to subsections 10(2)
and 11(2). It is intended that a worker will be able to raise a WHS issue at their
workplace and exercise rights such as the right to cease work without this precluding
them from also taking action through the Commission. Further, these amendments
would only relate to state and territory WHS laws. As a result, applications that are
made under federal and state or territory industrial relations laws to stop sexual
harassment or bullying are intended to operate unaffected.
66. Subsections 10(5) and 11(5), as amended by this Bill, would provide that where a
state or territory law (relating to discrimination or work health and safety) deals with
a matter that is also dealt with by the SD Act and a person could be liable for an
offence under both laws, they may only be prosecuted under one of the laws and
cannot be prosecuted under both. It is important to note that the SD Act is
predominantly civil in nature and has a limited number of offences, therefore the risk
of overlap is minimal.
34
67. Items 1 and 3 would extend the current arrangements in relation to the interaction
between the SD Act and state and territory anti-discrimination legislation to state
and territory WHS laws. The amendments would not change or alter the operational
framework to manage multiple actions that is already in place.
Claim for workers compensation
68. Items 2 and 4 would amend paragraphs 10(4)(b) and 11(4)(b) of the SD Act to
clarify that a reference to state or territory law that 'deals with work health and
safety' does not include a 'claim for workers compensation.' This would ensure that
a person is not prevented from making a complaint to the Commission and
addressing unlawful discrimination under the SD Act if they have also made a claim
for workers compensation under state and territory legislation. This reflects the
different purpose and remedies available for individuals under workers
compensation schemes in comparison to federal anti-discrimination law.
Items 5 - 7
Section 47A - Victimisation
69. These items would amend section 47A of the SD Act, which make it an unlawful to
commit an act of victimisation against another person. Relatedly, section 94(1) of
the SD Act provides that it is an offence to commit an act of victimisation against
another person.
70. Item 5 would insert paragraph 47A(2)(h) which would provide that a person (the
first person) commits an act of victimisation if they subject, or threaten to subject,
another person (the second person) to any detriment because the second person has
made an allegation that a person has contravened a provision of Part IIA of the
SD Act. This amendment would extend the scope of subsection 47A(1) to include
circumstances in which a person victimises another person because they have made
an allegation in relation to the positive duty.
71. Item 6 would amend subsection 47A(2) to ensure that section 47A also covers
victimising conduct on the ground that a person (the first person) believes that
another person (the second person) has or proposes to make an allegation that a
person has contravened a provision of Part IIA of the SD Act. This amendment
would extend the scope of subsection 47A(1) to include circumstances in which a
person victimises another person because they believe the person has made, or plans
to make, an allegation in relation to the positive duty.
72. Item 7 would amend subsection 47A(3) to provide a defence to an allegation of
victimisation under subsection 47A(1) in relation to new Part IIA of the SD Act if a
person can establish that the allegation was false and not made in good faith. This
35
amendment would extend the scope of the defence in subsection 47A(3) to cover
allegations that are false and not made in good faith in relation to the positive duty.
73. For example, Jessica is a student nurse in a major hospital and has secured a position
on the hospital's graduate program. Jessica witnesses a range of concerning conduct
during her placement, including incidents of sexual harassment by senior staff.
Jessica is unsure what do to as the hospital's policies and procedures relating to
sexual harassment are out of date. Jessica decides to notify the Commission that the
hospital may not be complying with the positive duty under the SD Act. This
notification leads to the Commission conducting an inquiry and issuing a
compliance notice to the hospital regarding their compliance with the duty. A senior
doctor, Dennis, learns that Jessica made the initial notification to the Commission
and subsequently withdraws the offer for a graduate position because Jessica is a
'snitch' and 'not a team player.' The operation of section 47A(1) means that Jessica
can lodge a complaint with the Commission on the basis that Dennis has subjected to
her to detriment because she made an allegation in relation to the positive duty
(paragraph 47A(2)(h)).
Item 8
Part IIA - Duty to eliminate unlawful sex discrimination etc.
74. This item would insert new 'Part IIA - Duty to eliminate unlawful sex
discrimination etc.' in the SD Act. This part would follow existing Part II of the SD
Act, which prohibits unlawful sex discrimination, including sexual harassment, in
specified areas of public life. These amendments are intended to reframe the existing
obligations on employers and PCBUs as a positive obligation and to explicitly
promote proactive compliance with the SD Act.
Simplified outline of this Part
75. New Part IIA includes a simplified outline to provide users of the SD Act with a
clear overview of the new provision, including the conferral of powers to the
Commission in relation to the positive duty.
Section 47C - Duty to eliminate unlawful sex discrimination etc.
76. New subsection 47C(1) of the SD Act provides that employers and PCBUs, referred
to as the duty holder, must take reasonable and proportionate measures to eliminate,
as far as possible, specific discriminatory conduct by themselves and their
employees, workers, agents or third parties, where applicable.
'Employers and PCBUs'
77. New section 47C(1) introduces a positive duty on both 'employers' and 'persons
conducting a business or undertaking.' The inclusion of both of these terms would
36
ensure that the scope of the positive duty aligns with the existing prohibitions and
exemptions in the SD Act.
78. The term 'employment' is defined in section 4 of the SD Act to include part-time
and temporary employment; work under contract for services; work as a
Commonwealth employee; and work as a State employee of a State. This definition
also extends to the corresponding terms 'employer' and 'employee.'26 This means
that the positive duty would cover micro, small, medium and large businesses.
79. The Respect at Work Act 2021 inserted the definition of a 'person conducting a
business or undertaking' into subsection 4(1) of the SD Act. A PCBU is defined to
include a person who is a 'person conducting a business or undertaking' within the
meaning of the model WHS laws.27 The phrase 'business or undertaking' is intended
to be read broadly and covers businesses or undertakings conducted by persons
including employers, principal contractors, head contractors, franchisors and the
Crown. This means that the positive duty would also cover a sole trader or
self-employed person.
80. The SD Act refers to both 'employers' and 'PCBUs' depending on the provision.
For example, section 14(1) and (2) provide that it is unlawful for an 'employer' to
discriminate in relation to employment. However, section 28B(1) and (3) provide
that it is unlawful for both 'employers' and 'PCBUs' to engage in sexual harassment
or harassment on the ground of sex. This is a result of amendments in the Respect at
Work Act 2021, which expanded the application of section 28B to cover more types
of workers and ensure greater alignment between the SD Act and WHS laws in
relation to sexual harassment. By referring to both 'employers' and 'PCBUs,' new
section 47C would be consistent with these existing provisions and exemptions of
the SD Act.
'Take reasonable and proportionate measures to eliminate ... as far as possible'
81. New section 47C requires employers and PCBUs to 'take reasonable and
proportionate measures' to 'eliminate, as far as possible,' specific discriminatory
conduct from occurring. This language is consistent with the positive duty in
subsection 15(2) of the Victorian Equal Opportunity Act 2010.
82. The requirement to 'take reasonable and proportionate measures' would mean that
duty holders would need to proactively consider their compliance with the positive
duty and any measures that would be appropriate to achieve compliance for their
organisation in their particular circumstances. This may involve employers and
PCBUs taking positive steps to identify and understand potential areas of non-
compliance in their organisation, developing a strategy for meeting and maintaining
26 Sex Discrimination Act 1984 (Cth) s 4 (Note 1).
27 Work Health and Safety Act 2011 (n 14) s 19.
37
compliance, and reviewing and improving compliance where appropriate. However,
the precise form of these measures will differ significantly across organisations
depending on their specific circumstances.
83. The term 'reasonable and proportionate measures' is not defined in the SD Act.
However, the related concept of 'all reasonable steps' has been extensively explored
in the case law in relation to vicarious liability under the SD Act. The courts have
considered a number of factors when determining whether an employer took all
reasonable steps, including whether proactive steps were taken prior to the act of
discrimination and the impact of these steps. The courts have also considered the
size and circumstances of an individual employer in applying this test, which
involves considerations of 'proportionality.' Proportionately therefore requires a
consideration of the particular situation of an employer or PCBU.
84. For example, in Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91, Driver FM
found that the SD Act does not distinguish between large and small employers in
terms of the availability of a defence under section 106. In that case, Driver FM
stated that 'it would be unrealistic to expect all employers, regardless of size, to
adhere to a common standard of preventative measures.'28 Driver FM found that the
vicarious liability provisions require 'the employer to take some steps, the precise
nature of which will be different according to the circumstances of the employer.
Thus, large corporations will be expected to do more than small businesses in order
to be held to have acted reasonably.'29
85. In Aleksovski v Australia Asia Aerospace Pty Ltd, Raphael FM noted that 'it is
generally accepted that "all reasonable steps" in connection with sexual harassment
in the workplace means that the employer is required to have a policy in relation to
sexual harassment which should be clear and placed in written form and
communicated to all members of the workforce.'30 In that case, Raphael FM
concluded that there was no system in place for ensuring that the employer's equal
opportunity policies and policies on sexual harassment were disseminated in the
workplace. Raphael FM also found that the employer's 'failure to thoroughly set out
appropriate guidelines and provide appropriate training would ... make the
respondent vicariously liable for the actions of the employee.'31
86. In the recent case of Von Schoeler v Allen Taylor and Company Ltd Trading as
Boral Timber (No 2) [2020] FCAFC 13, the Full Court of the Federal Court of
Australia observed that if an employer seeks to rely on workplace policies to show
that they are not vicariously liable, then 'it may be necessary to demonstrate not only
28 Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91, [37].
29 Ibid.
30 Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81, [88].
31 Ibid [93].
38
that the policies were communicated to the relevant employee, but that they were
periodically reinforced.'32 The court emphasised that policies should have a
deterrent impact by clearly stating that harassment is against the law and setting out
the consequences for perpetrators and employers.33 In that case, the court found that
the relevant training materials did not clearly state that sexual harassment is
unlawful or include statements on what disciplinary action would be taken if sexual
harassment occurred.34 The court concluded that the employer was vicariously liable
due to absence of evidence that there were steps taken to convey the seriousness and
consequences of sexual harassment to employees.35
87. However, in McAlister v SEQ Aboriginal Corporation [2002] FMCA 109,
Rimmer FM found that the employer had taken all reasonable steps in the
circumstances and was not vicariously liable for the conduct of its employee. In that
case, the employer was a small operation funded to provide Aboriginal legal services
and had limited resources.36 Rimmer FM found that the employer had clearly
established their expectations of employees in relation to sexual harassment by
having an appropriate complaint handling process, running workshops for staff with
information about sexual harassment and discrimination obligations, and having
senior staff reiterate that sexual harassment would not be tolerated, among other
actions.37
88. The Commission has also published guidance for employers on vicarious liability
and practical steps that can be taken to prevent acts of discrimination and
harassment.38 The guidance recognises that steps will differ across organisations, but
suggests a range of actions, including:
• having a strong and clear policy on discrimination and harassment and
making sure it is communicated effectively in the workplace
• ensuring there is clear, unambiguous and visible support from senior
management for the policy
• developing a procedure to respond to internal complaints about
discrimination and harassment in a fair, timely and effective way
• treating all complaints seriously and investigating them promptly
• ensuring all staff are aware of the organisation's policies and procedures
regarding discrimination and harassment
• providing regular training to staff to ensure they understand their workplace
responsibilities and to identify and respond to incidents of sexual
harassment.
32 Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13, [64].
33 Ibid [66].
34 Ibid [80].
35 Ibid [81].
36 McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [144].
37 Ibid.
38 Australian Human Rights Commission, Vicarious Liability (Factsheet, 2014)
.
39
89. While the existing case law and guidance relating to vicarious liability is focused on
an employer's liability for conduct that has already occurred, the concept of 'all
reasonable steps' and associated case law may be relevant in determining whether an
employer or PCBU has taken 'reasonable and proportionate measures' to eliminate
certain conduct 'as far as possible' under the new duty.
90. As noted in the Respect@Work Report, WHS laws already impose a duty on PCBUs
to ensure workers are not exposed to health and safety risks, including sexual
harassment. The model WHS laws requires PCBUs 'to ensure, so far as is
reasonably practicable, the health and safety of their workers and any other person
who might be affected by a PCBU's business or undertaking.'39 Section 18 of the
model WHS laws defines 'reasonably practicable' as 'that which is, or was at a
particular time, reasonably able to be done in relation to ensuring health and safety,
taking into account and weighing up all relevant matters.'40 Relevant matters include
the availability and suitability of ways to eliminate or minimise the risk and the cost
associated with available ways of eliminating or minimising the risk, among
others.41
91. While the model WHS laws and SD Act use alternative language to describe the
obligation on employers and PCBUs, the conduct required for compliance is
anticipated to be the same. Relevantly, both the model WHS laws and the SD Act
requires PCBUs to do what is reasonable in the circumstances. In terms of assessing
what is reasonable, the list of matters for consideration in new subsection 47C(6)
substantially overlap with the list of relevant matters in section 18 of the model
WHS laws. This indicates that employers and PCBUs would take the same practical
steps, such as implementing policies and providing training, to meet their obligations
under both frameworks.
Subsections 47C(2) and (3) - Conduct by duty holder, employees, workers and agents
92. New paragraph 47C(1)(a) requires duty holders to take reasonable and proportionate
measures to eliminate, as far as possible, the conduct covered by subsection 47C(2)
by the people covered by subsection 47C(3). Subsection 47C(2) links to existing
provisions in the SD Act that prohibit unlawful discrimination in the workplace
context, such as sexual harassment, which means that the positive duty would only
require duty holders to take measures to eliminate conduct that is already unlawful.
The operation of subsections 47C(2) and (3) together means that duty holders are
responsible for eliminating certain forms of discriminatory conduct by themselves
39 Work Health and Safety Act 2011 (n 14) s 19.
40 Ibid s 18.
41 Ibid.
40
and, where applicable, their employees, workers and agents towards each other and
third parties, such as customers.
Subsection 47C(2)
93. Subsection 47C(2) sets out the conduct that duty holders are required to eliminate
under paragraph 47C(1)(a).
94. Paragraph 47C(2)(a) provides that the positive duty covers discrimination in
employment (subsection 14(1) and (2)), discrimination against commission agents
(section 15), discrimination against contract workers (section 16), and discrimination
in partnerships (section 17). These forms of discrimination are appropriately
connected to the employment context.
95. Paragraph 47C(2)(b) provides that the positive duty covers sexual harassment or
harassment on the ground of sex that is unlawful under section 28B, which sets out
the circumstances in which such conduct is unlawful in the workplace context.
96. Paragraph 47C(2)(c) provides that the positive duty covers conduct that is unlawful
under section 28M (hostile workplace environments). This provision, inserted in
Schedule 1 of this Bill, relates specifically to workplace environments.
97. Paragraph 47C(2)(d) provides that the positive duty covers victimisation that relates
to a complaint, proceeding, assertion or allegation in relation to the conduct
mentioned in paragraphs (a) to (c) of subsection 47C(2). This means that the positive
duty also covers victimising conduct in relation to the forms of unlawful sex
discrimination covered by the duty.
Subsection 47C(3)
98. Subsection 47C(3) provides that duty holders are responsible for the conduct of
specific people in the workplace. This provision is confined to workplace
relationships where an employer or PCBU could reasonably exercise control or
influence over another person's conduct.
99. Paragraph 47C(3)(a) provides that an employer or PCBU must take reasonable and
proportionate measures to eliminate, as far as possible, themselves from engaging in
the conduct listed in subsection 47C(2).
100. Paragraph 47C(3)(b) provides that if the duty holder is an employer, the employer
must take reasonable and proportionate measures to eliminate, as far as possible,
their employees from engaging in the conduct listed in subsection 47C(2). This
41
would cover Commonwealth employees, which includes public servants, members
of parliament and judicial officers.42
101. Paragraph 47C(3)(c) provides that if the duty holder is a PCBU, the PCBU must take
reasonable and proportionate measures to eliminate, as far as possible, their workers
from engaging in the conduct listed in subsection 47C(2).
102. Paragraph 47C(3)(d) provides that the duty holder, regardless of whether they are an
employer or PCBU, must take reasonable and proportionate measures to eliminate,
as far as possible, their agents from engaging in the conduct listed in subsection
47C(2). This would cover other types of employment relationships where a person is
acting on behalf of a duty holder, such as a salesperson operating on behalf of a
company.
103. For example, Kiera operates a small business selling handmade candles at a local
market. Kiera is a duty holder under the SD Act and has two employees. Under
subsections 47C(2) and (3), Kiera is required to take reasonable and proportionate
measures to eliminate, as far as possible, sex discrimination, sexual and sex-based
harassment, hostile workplace environments and acts of victimisation by herself and
her employees towards each other and third parties, where applicable.
Subsections 47C(4) and (5) - Other conduct towards employees and workers
104. New paragraph 47C(1)(b) would require duty holders to take reasonable and
proportionate measures to eliminate, as far as possible, the conduct covered by
subsections 47C(4). Subsection 47C(4) links to existing provisions in the SD Act
that prohibit unlawful discrimination by third parties, such as customers, in the
workplace context. This means that the positive duty would only require employers
and PCBUs to take measures to eliminate conduct that is already unlawful. The
operation of subsections 47C(4) and (5) means that employers and PCBUs are
responsible for protecting their employees and workers from being subjected to
certain discriminatory conduct by third parties, such as customers and clients.
Subsection 47C(5)
105. Subsection 47C(5) provides that employers and PCBUs are responsible for taking
measures to eliminate conduct by third parties towards their employees and workers,
where relevant. This recognises the role that duty holders can play in protecting their
employees and workers from discriminatory conduct by others.
106. Paragraph 47C(5)(a) provides that if the duty holder is an employer, the employer
must take reasonable and proportionate measures to eliminate, as far as possible,
their employees from experiencing the conduct set out in subsection 47C(4).
42 See definition of 'Commonwealth employee' in section 4 of the SD Act.
42
Paragraph 47C(5)(b) provides that if the duty holder is a PCBU, the PCBU must
take reasonable and proportionate measures to eliminate, as far as possible, their
workers from experiencing the conduct set out in subsection 47C(4).
Subsection 47C(4)
107. Subsection 47C(4) sets out the conduct that duty holders are required to take
measures to eliminate under paragraph 47C(1)(b).
108. Paragraph 47C(4)(a) provides that the positive duty covers sexual harassment, or
harassment on the ground of sex, towards people covered by subsection 47C(5) that
is unlawful under subsection 28B(6) or (8). This means that an employer or PCBU
must take measures to protect their employees or workers from being sexually
harassed or harassed on the ground of sex by third parties, such as customers.
109. Paragraph 47C(4)(b) provides that the positive duty covers conduct in workplaces
where persons covered by subsection 47C(5) work that is unlawful under new
section 28M (hostile workplace environments). This means that an employer or
PCBU must take measures to protect their employees or workers from being subject
to a hostile work environment by third parties, such as clients.
110. Paragraph 47C(4)(c) provides that the positive duty covers acts of victimisation
against persons covered by subsection 47C(5) that relate to complaints, proceedings,
assertions or allegations in relation to conduct mentioned in paragraphs 47C(2)(a) to
(c). This means that an employer or PCBU must take measures to protect their
employees or workers from being subjected to detriment, or threatened with
detriment, by third parties, such as friends or associates of an employee.
111. For example, Arti operates a café in a large shopping centre. Arti is a duty holder for
the purpose of the SD Act and has several employees. Under subsections 47C(4) and
(5), Arti is required to take reasonable and proportionate measures to eliminate, as
far as possible, third parties, such as customers and suppliers, from subjecting her
and her employees to sexual and sex-based harassment, hostile workplace
environments and acts of victimisation.
Matters to be taken into account
112. New subsection 47C(6) would set out the matters to be taken into account by a
decision-maker in determining whether a duty holder is complying with the positive
duty. As noted above, the meaning of 'reasonable and proportionate measures'
depends on the particular circumstances of an employer or PCBU. These factors are
intended to assist the decision-maker in determining what would be reasonable and
proportionate for an individual employer or PCBU in the circumstances.
43
113. Paragraph 47C(6)(a) provides that 'size, nature and circumstances of the duty
holder's business or undertaking' is a relevant matter. This recognises that it may be
reasonable for micro or smaller businesses to have more informal or limited
measures in place to prevent unlawful conduct in comparison with a larger business.
This also recognises that the nature of a business, such as the workforce profile, may
be relevant when determining the steps that should be taken. For example, an
employer may need to take further steps to prevent unlawful conduct in an
environment that is dominated by one sex.
114. Paragraph 47C(6)(b) provides that 'the duty holder's resources, whether financial or
otherwise' is a relevant matter. This recognises that it may not be reasonable for a
business with limited human resources capacity to offer sophisticated human
resources advice, support services and complaint handling mechanisms for
employees. However, it may still be reasonable for the business to implement a
complaint handling mechanism that reflects the human resources capacity of the
business.
115. Paragraph 47C(6)(c) provides that 'the practicability and the cost of steps to prevent
conduct' is a relevant matter. This recognises that it may not be reasonable for some
businesses to take steps that involve significant costs such as delivering bespoke
training or providing counselling for staff. However, in these cases, businesses may
still be required to take steps that are less costly, such as communicating
expectations to staff regularly and referring to existing guidance materials.
116. Paragraph 47C(6)(d) provides that 'any other relevant matter' can be taken into
account when assessing compliance with the positive duty. This provides the
decision-maker with the flexibility to consider a broad range of factors, such as the
culture of the workplace, levels of employee supervision, working hours, geographic
location, or implementation of the Commission's guidance materials (required to be
produced by the Commission under paragraph 35A(a)), as needed.
117. For example, an employer or PCBU's uptake and utilisation of the Commission's
guidance materials could be a 'relevant matter' to be considered when assessing
compliance with the positive duty. This is consistent with the way courts have
considered employers' vicarious liability (as discussed above).
Illustrative examples of section 47C
118. Joe is the owner of a small delivery business. Joe has seven full-time workers,
including six male delivery drivers and one female administrative officer. Joe's
business has been operating for two years and makes a modest profit. As Joe is an
employer, Joe must take measures to eliminate, as far as possible, himself (as a duty
holder) and his employees from engaging in the forms of unlawful discrimination
covered by subsection 47C(2). Joe must also take measures to eliminate, as far as
44
possible, his employees from experiencing the forms of unlawful discrimination
covered by subsection 47C(4). Joe is aware of the risk of his employees
experiencing discriminatory conduct while at work, including by customers. Given
the nature of his business, Joe writes a short policy on harassment and
discrimination, including how a complaint would be handled and responding to
inappropriate conduct by customers. Joe discusses the policy during a staff meeting
and provides a printed copy to all staff. Joe also regularly checks in with his staff to
discuss rostering, leave and other matters, including any behavioural issues. As a
result of these measures, Joe is likely to be compliant with the positive duty under
section 47C in the circumstances.
119. Aida and Daniel are the co-owners of a large hotel in a ski resort. The hotel employs
more than 60 staff in a range of roles, including managers, chefs and cleaners. Due
to the seasonal nature of the business, the majority of staff are part-time or casuals,
and there is a high staff turnover. Aida and Daniel are employers and must take
measures to eliminate, as far as possible, themselves (as duty holders) and their
employees from engaging in the forms of unlawful discrimination covered by
subsection 47C(2). Aida and Daniel must also take measures to eliminate, as far as
possible, their employees from experiencing the forms of unlawful discrimination
covered by subsection 47C(4). Aida and Daniel recognise the risks associated with
short-term work and develop an action plan for complying with the positive duty. As
part of this plan, Aida and Daniel task their human resources officer with developing
a policy on harassment and discrimination and ensuring this is part of the
onboarding process for new staff. Aida and Daniel also require managers to
complete externally-provided training on harassment and discrimination on an
annual basis. The managers are then responsible for ensuring their staff are aware of
the policy and reiterating behavioural standards. As a result of these measures, Aida
and Daniel are likely to be compliant with the positive duty under section 47C in the
circumstances.
120. Ben is the human resources manager for 'Future IT,' a technology company that
employs more than 250 staff. The majority of staff work remotely from across
Australia in small teams. Future IT must take measures to eliminate, as far as
possible, its employees from engaging in the forms of unlawful discrimination
covered by subsection 47C(2). Future IT must also take measures to eliminate, as far
as possible, their employees from experiencing the forms of unlawful conduct
covered by subsection 47C(4). To ensure Future IT is meeting its obligations under
the positive duty, Ben is responsible for implementing a strategic plan on harassment
and discrimination. The plan includes confidential staff surveys, data collection on
complaints, regular reviews of existing policies and procedures, and mandatory
training for managers and new staff on harassment and discrimination. To mitigate
the risks associated with a remote workforce, Ben also develops and circulates
specific guidance on harassment and discrimination in a remote context and the
45
supports available to staff. As a result of these measures, Future IT is likely to be
compliant with the positive duty under section 47C in the circumstances.
Item 9
121. This item would amend section 85 of the SD Act to provide that new Part IIA does
not make it a criminal offence to do an act that is unlawful, unless expressly
provided by Part IV - Offences. This means that failing to comply with the positive
duty is not a criminal offence for the purposes of the SD Act.
Items 10 - 12
Section 94 - Victimisation
122. These items would amend section 94 of the SD Act, which makes it an offence to
commit an act of victimisation against another person. Relatedly, section 47A of the
SD Act provides that it is unlawful for a person to commit an act of victimisation
against another person.
123. Item 10 would insert new paragraph 94(2)(h) to provide that a person (the first
person) commits an act of victimisation if they subject, or threaten to subject,
another person (the second person) to any detriment on the ground that the second
person has made an allegation that the first person has contravened a provision of
Part IIA of the SD Act. This amendment would extend the scope of subsection 92(1)
to cover circumstances where a person engages in victimising conduct because a
person has made an allegation in relation to the positive duty.
124. Item 11 would amend subsection 94(2) to ensure that subsection 94(1) also covers
victimising conduct on the ground that a person (the first person) believes that
another person (the second person) has or proposes to make an allegation that a
person has contravened a provision of Part IIA of the SD Act. This amendment
would extend the scope of subsection 94(1) to include circumstances in which a
person victimises another person because they believe the person has made, or plans
to make, an allegation in relation to the positive duty.
125. Item 12 would amend subsection 94(3) to provide a defence to a prosecution for
victimisation under subsection 94(1) if an accused person can establish that an
allegation of victimisation in relation to new Part IIA of the SD Act was false and
not made in good faith. This amendment would extend the scope of the defence in
subsection 94(3) to cover allegations that are false and not made in good faith in
relation to the positive duty.
46
Item 13
126. This item would amend section 110 of the SD Act to provide that nothing in the
SD Act confers any right of action in respect of the doing of an act that is unlawful
under new Part IIA, unless express provision is made by the legislation.
Part 2 - Compliance
Australian Human Rights Commission Act 1986
127. The Bill would insert new provisions in the AHRC Act to enable the Commission to
monitor and assess compliance with the positive duty in the SD Act. These
amendments would implement recommendation 18 of the Respect@Work Report,
which recommended that the Commission be given the function of assessing
compliance with the positive duty and for enforcement.
128. The Respect@Work Report advised that for the positive duty to be effective, it must
be accompanied by an appropriate enforcement mechanism. An appropriate
enforcement mechanism would help ensure employers engage seriously with their
legal obligations. It would also ease the burden on individuals by enabling the
Commission to initiate action to address unlawful discrimination, rather than relying
on individuals making complaints.
129. The Bill would confer a number of functions on the Commission to ensure that
employers and PCBUs are supported to meet their obligations and achieve
compliance. This includes functions to prepare and publish guidelines for complying
with the positive duty. The Commission would also be provided with the full suite of
powers to enforce compliance with the positive duty when necessary.
Amendments commencing day after Royal Assent
Item 14
130. This item would insert a new definition into subsection 3(1) of the AHRC Act to
define positive duty in relation to sex discrimination as meaning section 47C of the
SD Act.
131. The positive duty would be inserted into new section 47C of the SD Act (item 4 in
Schedule 2 above). However, the functions and powers of the Commission are
provided for in the AHRC Act. Consequently, amendments to the AHRC Act are
necessary to provide the Commission with powers to monitor and enforce
compliance with the positive duty.
132. This amendment provides the link required between the positive duty in the SD Act,
and the Commission's new compliance powers in the AHRC Act (see items 14-25).
47
Item 15
133. Section 11 of the AHRC Act sets out the duties, functions and powers of the
Commission. Paragraph 11(1)(da) would be inserted to provide that a further
function of the Commission is to undertake the functions conferred on it by
section 35A (see item 16 below). These functions are those relating to the positive
duty in relation to sex discrimination.
Item 16
134. This item would insert new Division 4A into Part II of the AHRC Act for the
Commission's functions relating to positive duty in relation to sex discrimination.
These functions are provided for by items 16-25 in this Schedule.
135. New subsections 35A(a)-(c), (f) would be inserted to provide the Commission with a
number of functions to achieve voluntary compliance with the positive duty. These
functions 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.
136. A note would be inserted under section 35A to clarify that when referring to the
'positive duty in relation to sex discrimination', this section means section 47C of
the SD Act.
137. The functions conferred by subsections 35A(a)-(c), (f) are not new to the
Commission. They are akin to those already exercised by the Commission in relation
to unlawful discrimination and human rights under section 11 of the AHRC Act.
They are also essential functions to National Human Rights Institutions like the
Commission.
138. New paragraph 35A(a) would enable the Commission to prepare and publish (where
appropriate), guidelines for complying with the positive duty in relation to sex
discrimination. 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. These guidelines will likely
be used by employers and PCBUs when developing their harassment and
discrimination policies and training activities.
139. New paragraph 35A(b) would enable the Commission to promote an understanding
and acceptance of the positive duty in relation to sex discrimination. The
Respect@Work Report emphasised that cultural change is required to prevent sexual
harassment.43 Increasing understanding and acceptance of the positive duty in the
community would contribute to this cultural change. The Commission may exercise
43 Respect@Work Report (n 1) 644.
48
this function through education and training, events and discussion, media outreach,
digital resources and social media communication.
140. Under new paragraph 35A(c), the Commission would also have the function of
undertaking research and educational programs in relation to the positive duty in
relation to sex discrimination. The Commission already has the function of
undertaking research into human rights and discrimination issues in Australia which
often leads to the release of extensive reports - such as the Respect@Work Report.
This provision would provide the Commission with the explicit ability to undertake
research on the positive duty in relation to sex discrimination. The Commission's
ability to undertake educational programs would also be valuable in providing
organisations with the tools to comply with the positive duty.
141. New subsection 35A(f) would allow the Commission to do anything incidental or
conducive to the performance of any of the preceding functions (contained in
subsections 35A(a)-(e)). This provision recognises that the Commission has
significant experience and expertise in this area. Consequently, section 35A should
not be read as an exhaustive list of the functions it may utilise in promoting
compliance with the positive duty. Examples of these incidental or conductive
functions could include assisting employers to develop action plans concerning ways
in which they will act to achieve compliance with the positive duty. It may also
include providing advice, reviewing laws and making submissions to parliamentary
inquiries.
Amendments commencing 12 months after Royal Assent
142. The amendments provided by items 17-25 would provide the Commission with a
full suite of compliance powers to enforce the positive duty. These measures are
intended to be utilised by the Commission as necessary if efforts to achieve
voluntary compliance have been unsuccessful.
143. This approach to positive duty means that an individual would not be able to make a
complaint to the Commission and seek a remedy for breach of positive duty. Instead,
the positive duty would be enforced by the Commission, where it reasonably
suspects that a person is not complying, through a range of compliance tools. This is
designed to shift the burden of enforcement away from individuals and ensure the
focus is on prevention. If an individual has experienced unlawful conduct, such as
sexual harassment, they could address this through the Commission's existing
conciliation functions.
144. The amendments provided for by items 17-25 would commence 12 months after
Royal Assent of the Bill. However, the Commission's education and capacity
building functions would commence the day after Royal Assent (see items 14-16).
This staged-approach means that in the first year, the Commission's sole focus
49
would be on using its education and capacity building tools to assist employers to
understand their obligations and achieve compliance. This approach would
encourage employers to engage cooperatively with the Commission and gives them
time to achieve voluntary compliance. It would also provide the Commission with
the necessary time to establish this new function, produce and distribute guidance
materials and build its expertise in undertaking compliance activities.
Item 17
145. This item would insert two new definitions into subsection 3(1) of the AHRC Act
for compliance notes and the Regulatory Powers Act. These definitions are related to
the Commission's new compliance powers.
146. Compliance notice would be inserted to mean a notice given under section 35F of
the AHRC Act (see item 23 of this Schedule).
147. Regulatory Powers Act would be inserted to mean the Regulatory Powers Act which
is used in the context of the Commission entering into enforceable undertakings (see
item 23 of this Schedule).
Items 18 - 19
148. Subsection 8(6) of the AHRC Act relates to the Constitution of the Commission.
These items insert subsections 35A(d) and 35A(f) into this subsection. Subsection
35A(d) provides the Commission with the function of inquiring into compliance
with the positive duty (item 22), whilst subsection 35A(f) enables the Commission
to do anything incidental or conductive to its positive duty functions (item 16).
149. Inserting these subsections into subsection 8(6) means that these functions must be
performed by the President and any references to 'the Commission' or to a 'member
of the Commission' shall, in relation to the functions, be read as a reference to the
President.
Item 20
150. Subsection 11(1) of the AHRC Act provides for the Commission's functions. New
subsection 11(3A) would provide that the functions of the Commission does not
include inquiring into an intelligence agency's compliance with the positive duty.
Subsection 11(4) explains that the reference to intelligence agencies in subsection
11(3A) means:
50
• the Australian Secret Intelligence Service
• the Australian Security Intelligence Organisation
• the Office of National Intelligence
• the Australian Signals Directorate
• that part of the Defence Department known as the Australian
Geospatial-Intelligence Organisation (including any part of the Defence
Force that performs functions on behalf of that part of the Department), or
• that part of the Defence Department known as the Defence Intelligence
Organisation.
151. The practical effect of this amendment would be to carve out intelligence agencies
from the Commission's functions relating the positive duty in relation to sex
discrimination. This is appropriate to protect the security of information and
functions within the intelligence community, protecting the 'need to know' principle
and confidentiality by limiting the number of people investigating matters relating to
them. It is also consistent with the existing approach in the AHRC Act in relation to
that community, which recognises the Commission's expertise does not extend to
balancing the needs of intelligence agencies and issues of national security more
broadly.
152. Subsection 11(3B) would be inserted to require the Commission to refer matters
relating to an intelligence agency's compliance with the positive duty to the IGIS
where it 'reasonably suspects' that the intelligence agency is not complying. This
threshold is the same as what the Commission must need to reach to undertake an
inquiry into compliance with the positive duty by an organisation outside the
intelligence community (see item 23 in this Schedule).
153. This referral mechanism is important in ensuring that there is no gap in the law for
intelligence agencies who can still be subject to a robust inquiry into their
compliance with the positive duty, albeit by the IGIS rather that the Commission.
154. The referral of matters to the IGIS is not a new function for the Commission. This
mandatory referral mechanism is consistent with the existing requirement on the
Commission to refer a complaint received alleging an act or practice of intelligence
agency is inconsistent with or contrary to any human rights or constitutes unlawful
discrimination, to the IGIS.44
Item 21
155. Under subsection 19(2) of the AHRC Act, which deals with delegations, the
President can delegate any or all of their powers to another member of the
44
Australian Human Rights Commission Act 1986 (Cth) s 11(3).
51
Commission, a member of the staff of the Commission or any other person (see
paragraph 8(1)(a) of the AHRC Act).
156. Subsection 19(2C) would be inserted to provide that the President cannot delegate a
power under section 35F, 35G or 35J to a person other than a member of staff of the
Commission who is an SES employee (or acting) or classified as Executive Level 2
employee or equivalent (or acting). These sections relate to the issuing,
reconsideration and enforcement of compliance notices (see item 23). The
expressions 'SES employee' and 'acting SES' employee are defined in the Acts
Interpretation Act.
157. In practice, it may be necessary for another person within the Commission to
exercise the functions relating to compliance notices on the President's behalf, as the
President has limited time and resources to perform all the functions conferred on
them under the AHRC Act. However, the issuing, reconsideration and enforcement
of compliance notices are significant and complex functions which have serious
implications for employers and PCBUs. Allowing delegation only to senior and
experienced employees would achieve the appropriate balance between practical
considerations and the significance of these functions.
Item 22
158. This item would insert additional paragraphs into new section 35A which provides
for the functions of the Commission in relation to sex discrimination (see item 16 of
this Schedule). It confers functions on the Commission to inquire into a person's
compliance with the positive duty in relation to sex discrimination (paragraph
35A(d)) and to ensure compliance with the positive duty in relation to sex
discrimination (paragraph 35A(e)). These functions are set out in item 23 of this
Schedule.
Item 23
Performance of inquiry function relating to positive duty in relation to sex discrimination
159. New subsection 35B(1) establishes the threshold for the Commission to undertake
an inquiry relating to the positive duty. The Commission may initiate an inquiry into
a person's compliance with the positive duty if the Commission reasonably suspects
that the person is not complying.
160. Reasonable suspicion involves less than a reasonable belief, but more than a
possibility. This test would require the Commission to be able to point to the factual
basis which informed its suspicion that a person is not complying with the positive
duty. The reasonableness of any suspicion must be judged in light of the facts
available to the Commission at the time. For example, a reasonable suspicion could
52
be based on information or advice provided by other agencies or regulators,
information disclosed by impacted individuals, or media reporting.
161. Under subsection 35B(2), the Commission must act fairly in the performance of this
inquiry function (subsection 35A(d)). This requires it to undertake its inquiries in
accordance with the rules of procedural fairness. Complying with the requirements
of section 35C (below) would be essential in ensuring the Commission acts fairly.
Subsection 35B(2) does not impose a duty on the Commission that is enforceable in
court meaning a person cannot bring court proceedings alleging a breach of this
provision (subsection 35B(3)). However, subsection 35B(4) ensures that this does
not interfere with any legally enforceable obligations the Commission has to observe
the rules of natural justice.
Commission to notify persons and give opportunity for making of submissions
162. New subsection 35C would require the Commission to provide the person subject to
an inquiry with a written notice stating the grounds on which the Commission
commenced the inquiry, 'as soon as practicable'. As soon as practicable should be
construed according to its ordinary meaning, considering all the facts and
circumstances of the individual case.
163. This requirement promotes procedural fairness by ensuring that a person is aware
that an inquiry is on foot and on what basis. It would also ensure that they have the
information they need to prepare submissions in relation to their compliance. This
notification requirement is similar to existing subsection 46PF(7) of the AHRC Act
in relation to the Commission's President's decision to inquire into a complaint into
unlawful discrimination.
164. New subsection 35(C)(2) would require the Commission to give the person subject
to the inquiry a reasonable opportunity to make written or oral submissions before
making a finding that a person is not complying with the positive duty in relation to
sex discrimination.
165. This requirement reflects a core aspect of procedural fairness and is similar to
existing section 27 of the AHRC Act in relation to the Commission's human rights
inquiry function. It would mean that if the Commission initiated an inquiry into a
person's compliance with the positive duty, it would need to ensure it had invited
that person to provide written submissions or appear before it prior to making a
finding of non-compliance. A 'finding' would be a formal conclusion put in writing
to the person subject to the inquiry under new subsection 35E(a).
53
Section 35D - Commission powers
166. Section 35D provides for the application of some of the Commission's existing
powers, as well as associated penalties for non-compliance and other provisions
under Division 3 of the AHRC Act, to its new functions relating to the positive duty
located in section 35A.
167. The existing provisions in Division 3 that would be applied by this Bill to the new
positive duty functions in section 35A would operate in the same way as they
currently do.
168. The powers and associated provisions relate to matters being dealt with by the
Commission under Division 3 (the Commission's human rights inquiry function), so
it is important that they are applied to new section 35A. This is broadly consistent
with the way the powers and associated provisions are applied to the Commission's
equal opportunity functions (see existing section 33 of the AHRC Act). Section 35D
clarifies that the existing powers and associated provisions would apply as if the
existing provisions in Division 3 referred to the functions of the Commission
relating to the positive duty in section 35A.
169. The exercise of the powers as applied to the Commission's positive duty functions
could be delegated to a member of the Commission, a member of the staff of the
Commission or another person or body of persons by writing under its common seal,
pursuant to subsection 19(1) of the AHRC Act.
170. The powers and associated provisions that are applied to the positive duty functions
are as follows:
• Section 21 - the power to obtain information and documents, including the
power to require someone to attend to answer questions;
• Section 22 - the power to administer an oath or affirmation to someone
attending before the Commission and examine them on oath or
affirmation;
• Section 23 - penalties for failing to provide information or documents, or
failing to be sworn or make an affirmation when attending before the
Commission (10 penalty units);
• Section 24 - provisions around what information, documents and
testimony can and cannot be compelled, and immunities available for
persons who are compelled; and
• Subsection 26(1) - a penalty for hindering, obstructing, molesting or
interfering with a member of the Commission or someone acting on behalf
of the Commission while conducting or participating in an inquiry,
examination or investigation.
54
171. As a result of the application of these provisions, the Commission would be able to
exercise these powers in the performance of its positive duty functions under
section 35A. They could therefore serve a person with a written notice requiring they
produce information or documents by a certain time, provided the Commission
believes the person is capable of giving information or producing documents
relevant to an inquiry they are undertaking into a person's compliance with the
positive duty (consistent with the requirements of existing section 21). For example,
where a member of staff of the Commission is conducting an inquiry into an
employer's compliance with the positive duty, they could serve the organisation with
a written notice requiring it to provide the relevant information, which the
Commission believes it has, within a period of two weeks. If the organisation does
not comply with the notice, it would be liable to 10 penalty units (pursuant to
paragraph 23(1)(b) of the AHRC Act).
172. With the application of these information gathering and examination powers to the
position duty functions comes the associated application of existing provisions that
abrogate the privilege against self-incrimination and legal professional privilege
(where relevant legal advice was provided to a Minister, the Commonwealth, or an
authority of the Commonwealth) and of protections for persons who will be subject
to the exercise of those powers.
173. Existing subsection 24(3) provides that a person is not excused from providing
information or giving evidence on the ground that it would disclose legal advice
furnished to a Minister, to a person or body that acts on behalf of the
Commonwealth, or to an authority of the Commonwealth (paragraph 24(3)(c));
would contravene the provisions of another law or would be contrary to the public
interest (paragraph 24(3)(d)); or might make the person liable to a penalty
(paragraph 24(3)(e)).
174. These existing provisions, as applied to the Commission's new positive duty
functions, will support the Commission's oversight and regulatory functions in
relation to the prevention of sexual harassment and related conduct. Sexual
harassment and related conduct have a significant impact on people's rights and
freedoms, ability to work and physical and mental health. Given the Commission is
able to undertake positive duty inquiries into government bodies, it is important that
it has access to the full facts and issues at play to effectively enforce the positive
duty and prevent sexual harassment.
175. Of note, there are several protections that balance these powers, including
subsections 23(2A) and (3), which provide that a person will not be penalised under
the AHRC Act for failing to produce a document or information, including under
examination, if they have a reasonable excuse, including that it would tend to
incriminate them. Further, subsection 24(4) provides that a person will not be liable
55
for any penalty under another law by virtue of producing a document or providing
information, including under examination.
Notification of findings and recommendations
176. New subsection 35E(a) would provide that if, following an inquiry, the Commission
finds that the person is not complying with the positive duty, it must notify the
person in writing of its findings and the reasons for its findings. This 'finding' is the
Commission's formal conclusion.
177. Under subsection 35E(b), the Commission may also choose to provide the person
found to be non-compliant with recommendations for preventing a repetition or
continuation of the failure to comply. These recommendations would be tailored to
the scale and nature of the issues identified but could include recommendations to
take immediate action to rectify a policy or practice.
Giving of compliance notice
178. New section 35F would enable the President (or their delegate) to issue a
compliance notice if a person is found to be non-compliant with the positive duty.
This would provide the President with a mechanism to enforce compliance with the
positive duty and specify action that must be taken to achieve compliance.
179. Under subsection 35F(1), the compliance notice must set out specific details,
including specific action that the person must take, or refrain from taking, in order to
address the failure (paragraph 35F(c)) and a reasonable period (being not less than
21 days) within which the person must take, or refrain from taking, the specified
action (paragraph 35F(d)).
180. 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.
181. New subsection 35F(2) sets out the relationship between compliance notices and
enforceable undertakings. It provides that if the President has accepted an
enforceable undertaking under Part 6 of the Regulatory Powers Act in relation to the
positive duty, it cannot also give the person a compliance notice, unless the
undertaking is withdrawn, cancelled or expired. This provision is intended to
provide certainty to employers and PCBUs about the interaction between different
compliance pathways available to the Commission.
56
Reconsideration of compliance notice
182. New subsection 35G(1) would enable a person who has received a compliance
notice to request reconsideration of the notice by the President (or their delegate).
This would provide organisations with procedural fairness by offering an accessible
mechanism to seek reconsideration of a notice, including the actions specified by the
notice. For example, a person may request a reconsideration of a notice if they
believe it is not reasonable for them to take the specified actions due to the size and
resources of their business.
183. Under paragraphs 35G(2)(a) and (b), a request for reconsideration must be made in
writing and set out the reasons for the request. This written request provides an
opportunity for the person who has received the compliance notice to outline their
concerns and inform the reconsideration process. For example, a person may provide
additional information about why a particular action is not reasonable for their
business to undertake in the timeframes provided.
184. Under paragraph 35G(2)(c), a written request for reconsideration must be given to
the President within 21 days after the person is given the compliance notice. This
provides a reasonable period of time for a person to consider the terms of the
compliance notice and determine whether they wish to request reconsideration.
185. New subsection 35G(3) and (4) provides that the President must reconsider the
compliance notice, if requested, and that the President may reconsider a compliance
notice without receiving a request if they are satisfied that there is sufficient reason
to do so.
186. New subsection 35G(5) provides that the President must act expeditiously in
reconsidering a compliance notice. The term 'expeditiously' should be given its
ordinary meaning. This provision reflects the importance of providing clarity to
people who have received a compliance notice, as well as ensuring that the
Commission's compliance activities are not unreasonably delayed due to the
reconsideration process.
187. New subsection 35G(6) provides that the President must either affirm, vary or
revoke the compliance notice following the reconsideration process. These options
provide flexibility to the President in relation to the appropriate outcome of the
reconsideration process.
188. New subsection 35G(7) provides that the President must give written notice of a
decision to affirm, vary or revoke the compliance notice to the person to whom the
compliance notice was given, setting out the reasons for the decision.
57
189. New subsection 35G(8) provides that if the President's functions under section 35G
are performed by the President's delegate, then the delegate who reconsiders the
notice must not have been involved in giving the compliance notice and must hold a
position, or perform duties, of at least the same level as the person who gave the
compliance notice. This provision provides procedural fairness and ensures that the
reconsideration process is separate and distinct from the initial giving of the
compliance notice.
Review of compliance notice
190. New section 35H would enable a person who has received a compliance notice to
apply to the federal courts for a review of the notice. A person may seek review by
the federal courts if they are dissatisfied with the outcome of the reconsideration
process in section 35G, but they are not required to seek reconsideration prior to
applying to the federal courts.
191. New subsection 35H(1) provides that a person may apply to the federal courts for
review of the compliance notice on the basis that the person has not failed to comply
with the positive duty or because the notice does not comply with section 35F,
or both. New subsection 35H(3) provides that the court may confirm, vary or cancel
the notice after reviewing it.
192. New subsection 35H(2) provides that the federal courts may stay the operation of the
compliance notice on the terms and conditions that the court considers appropriate at
any time after the application has been made. For example, the court may specify
that the organisation is not required to comply with the notice while the review
process is underway.
Enforcement of compliance notice
193. New section 35J would enable the President to apply to the federal courts for an
order directing a person to comply with the compliance notice. This would provide a
mechanism for the President to seek enforcement of a compliance notice if a person
remains non-compliant with the positive duty.
194. New subsection 35J(1) provides that the President may apply to the federal courts
for an order to enforce compliance if a person has been given a compliance notice
under section 35F, the notice has not been revoked or cancelled, the notice is not
being reconsidered or reviewed, and the President considers that the person has not
complied with the notice.
195. New subsection 35J(2) provides that the federal courts may make an order directing
the person to comply with the compliance notice or any other order that the court
58
considers appropriate if it is satisfied that the person has not complied with the
notice.
Enforceable undertakings
196. New section 35K would engage Part 6 of the Regulatory Powers Act to empower the
Commission to enter into, and enforce, undertakings in relation to compliance with
the positive duty. Section 35K provides a number of provisions that would clarify
certain procedural matters for the purposes of the Regulatory Powers Act and ensure
the appropriate application of Part 6 of the Regulatory Powers Act to the positive
duty.
197. This provision would provide a further tool for the Commission to enforce
compliance with the positive duty. It would enable the Commission to take a scaled
approach to encourage and enforce compliance, depending on the circumstances of a
given scenario and the willingness of the entity involved to comply. Enforceable
undertakings are an important tool because they involve engagement and discussion
between a regulator and the person suspected of being non-compliant, and can be
published. As a result, they can affect broader organisational and cultural change -
as the Commission's Free and Equal Position Paper recognised, '[e]nforceable
undertakings can require a person to make significant and ongoing commitments to
remedy past breaches of the law, as well as to prevent future contraventions.'45
Enforceable provision
198. Subsection 35K(1) would make the positive duty in section 47C enforceable under
Part 6 of the Regulatory Powers Act. This is a requirement of the Regulatory Powers
Act in order for a provision of another Act to be enforceable under Part 6
(subsection 110(2) and section 111). The application of the Regulatory Powers Act
would ensure these provisions of the Bill would draw from an existing framework of
standard regulatory powers exercised by Commonwealth agencies.
Authorised persons and delegation
199. Subsection 35K(2) provides that for the purposes of Part 6 of the Regulatory Powers
Act, the President of the Commission is an authorised person. Section 112 of the
Regulatory Powers Act, as applied to the positive duty, provides that the President
can exercise the powers provided under Part 6 of the Regulatory Powers Act
(subsection 112(1)) and any incidental powers, functions and duties (subsection
112(2)).
200. Subsection 35K(3) would enable the President to delegate their powers and
functions under Part 6 of the Regulatory Powers Act to a member of the
45
Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws
(Position Paper, 2021) 155 ('Free and Equal Paper').
59
Commission who is an SES employee (or acting), or classified as an Executive
Level 2 employee or equivalent (or acting). The expressions 'SES employee' and
'acting SES employee' are defined in the Acts Interpretation Act. Subsection 112(3)
of the Regulatory Powers Act enables delegation in this manner.
201. This provision would mean that the President could delegate their powers to accept
an undertaking and to seek to enforce it, among other things as provided for in Part 6
of the Regulatory Powers Act. Practically, it may be necessary for an SES employee
or Executive Level 2 employee of the Commission to exercise the enforceable
undertaking power on the President's behalf, as the President has limited time and
resources to perform all the functions conferred on them under the AHRC Act. If the
President were to delegate these powers, they would have to do so in writing, as
required by subsection 35K(3).
Relevant court
202. Subsection 35K(4) would provide that the relevant courts for the purposes of Part 6
of the Regulatory Powers Act are the Federal Court and the Federal Circuit and
Family Court of Australia (Division 2). This is relevant to the enforcement of
undertakings under section 115 of the Regulatory Powers Act.
Publication of enforceable undertaking
203. Subsection 35K(5) provides that the President (or their delegate) has the discretion
to publish an enforceable undertaking on the Commission's website. This will be
important, in cases where the Commission deems it necessary, to ensure the
commitments made under the undertaking are clear to the public. As the Free and
Equal Position Paper recognises, this is a 'good way of communicating to industry,
and to the community, the consequences of breaching the law.'46
Extension to external Territories
204. Subsection 35K(6) is a clarifying provision which provides that Part 6 of the
Regulatory Powers Act, as applied to the positive duty, extends to every external
Territory.
Substantive provisions of Part 6 of the Regulatory Powers Act
Acceptance of undertakings
205. Section 114 of the Regulatory Powers Act provides for the acceptance of written
undertakings by the President (or their delegate) (referred to herein as 'the
Commission') committing a person to particular action (or inaction) in order to
prevent or respond to a breach of the positive duty. The Commission may accept:
46
Free and Equal Paper (n 45) 155.
60
• a written undertaking by a person that they will take specified action in order
to comply with the positive duty;
• a written undertaking by a person that they will refrain from taking specified
action in order to comply with the positive duty; or
• a written undertaking by a person that they will take specified action directed
towards ensuring that the person does not contravene the positive duty, or is
unlikely to contravene it, in the future.
206. For example, the Commission may accept an undertaking from an entity that they
will create or review internal policies relating to sex discrimination, sexual
harassment, sex-based harassment, hostile work environments and victimisation
(paragraph 114(1)(a), taking specified action). The Commission may also accept an
undertaking from an entity that they will remove a policy or stop enforcing it, if it is
considered that would aid the entity's compliance with the positive duty (paragraph
114(1)(b)). The Commission may also accept an undertaking from an entity that it
will mandate training for all of its staff on a regular, ongoing basis and be audited by
a third-party annually for its compliance, if the Commission considered that would
help prevent future non-compliance with the positive duty (paragraph 114(1)(c)).
207. The undertaking must be in writing and must be expressed as an undertaking under
section 114 of the Regulatory Powers Act. The person providing the undertaking
may withdraw or vary it at any time, but must have the written consent of the
Commission to do so (subsection 114(3)). The Commission may cancel the
undertaking by written notice to the person it was given by (without any requirement
for their consent) (subsection 114(5)).
Enforcement of undertakings
208. Section 115 of the Regulatory Powers Act provides for the enforcement of
undertakings, enabling the Commission to apply to have them enforced in the
Federal Court of Australia or the Federal Circuit and Family Court of Australia
(Division 2). In order for the Commission to apply to the court, it must consider the
person has breached the undertaking (paragraph 115(1)(c)).
209. If the court is satisfied there has been a breach, it may make orders to remedy the
breach, including orders to comply with the undertaking, to pay a pecuniary penalty
to the Commonwealth, to compensate other people, or any other order the court sees
fit (subsection 115(2) of the Regulatory Powers Act).
Item 24
210. Existing subsection 36(9) is a deeming provision which provides that when a person
who is not a member of the Commission is acting as a President or Human Rights
Commissioner, the person shall be deemed to be a member of the Commission, for
61
the purposes of sections 21, 22, 23, 24, 26 (including those sections as applied by
33), 48 and 49. This item inserts section 35D (see item 23 in this Schedule) into this
provision so that these acting arrangements would now apply for the purposes of
sections 21, 22, 23, 24, 26 (including those sections as applied by 33 and 36D), 48
and 49.
Item 25
211. This item inserts Part II into section 49B so that the federal courts have concurrent
jurisdiction with respect to civil matters arising under this Part. This section would
operate in the same way as it currently does.
Inspector-General of Intelligence and Security Act 1986
Item 26
212. This item would insert a new definition into subsection 3(1) of the IGIS Act to
define positive duty in relation to sex discrimination as meaning section 47C of the
SD Act (see item 8 in this Schedule).
213. This definition is required to give effect to amendments to section 8 of the IGIS Act,
which confer the function of inquiring into the compliance by intelligence agencies
with the positive duty in relation to sex discrimination onto the IGIS.
Items 27 - 29
214. These items would amend section 8 of the IGIS Act to provide the IGIS with powers
to inquire into matters that may relate to compliance by intelligence agencies with
the positive duty in relation to sex discrimination. Section 8 of the IGIS Act provides
for the intelligence agency inquiry functions of the IGIS.
215. Providing the IGIS with these powers is important since the Commission cannot
inquire into an intelligence agency's compliance with the positive duty and instead
must refer these matters to the IGIS (see item 20 in this Schedule). These
amendments would ensure that there is no gap in the law for intelligence agencies,
who can still be subject to a robust inquiry into their compliance with the positive
duty, which would be undertaken by the IGIS rather that the Commission.
216. Paragraph 8(1)(e) would be inserted to provide that a function of the IGIS is to
inquire into any matter that may relate to compliance by the Australian Security and
Intelligence Organisation with the positive duty in relation to sex discrimination.
IGIS may conduct these inquiries at the request of the Attorney-General or the
responsible Minister or of the Inspector-General's own motion. This language is
consistent with the way the other functions provided for in section 8 are conferred on
the IGIS. The Commission's referral of a matter relating to an intelligence agency's
62
compliance with the positive duty to the IGIS could trigger the Inspector-General
exercising its own motion power to commence an inquiry.
217. Paragraph 8(2)(d) replicates the above power in relation to the IGIS inquiries into
the Australian Secret Intelligence Service (ASIS), Australian Geospatial-Intelligence
Organisation (AGO), or Australian Signals Directorate (ASD).
218. Paragraph 8(3)(d) also replicates the above power in relation to the IGIS inquiries
into the Defence Intelligence Organisation or Office of National Intelligence.
Item 30
219. This item would amend subsection 8(4) to provide that the Inspector-General cannot
inquire into compliance by ASIS, AGO or ASD with the positive duty except to the
extent that Australian citizens or permanent residents are affected or a law of the
Commonwealth, a State or a Territory may be violated. This provision is consistent
with the existing approach taken in the IGIS Act in relation to unlawful
discrimination matters referred to the IGIS by the Commission.
63
Schedule 3 - Inquiries into systemic unlawful discrimination
Australian Human Rights Commission Act 1986
220. The Bill would confer a new inquiry function on the Commission to enable it to
inquire into, and report on, issues of systemic unlawful discrimination or suspected
systemic unlawful discrimination.
221. This amendment would implement recommendation 19 of the Respect@Work
Report, which recommended that the Commission be provided with an enhanced
inquiry function to inquire into systemic unlawful discrimination, including systemic
sexual harassment, on its own motion. The Respect@Work Report found that there
are significant cultural and systemic factors driving sexual harassment in the
workplace and addressing these systemic drivers can be challenging.
222. Empowering the Commission to inquire into systemic issues of discrimination
would enable them to investigate the root causes of unlawful discrimination where it
affects a number of people (compared to a single individual) and to assist businesses
and organisations to rectify these issues, through recommending systemic remedies,
such as organisational training and other mechanisms that promote structural
change. It is both more efficient for the Commission to consider such issues through
a broad inquiry function, as the issues will often go to an organisation or industry's
culture, governance and systems, as well as more effective to address them in this
manner, compared to relying on an individual complaints mechanism. In this way,
the systemic inquiry function introduced through the Bill would complement the
positive duty compliance function and help shift the burden of ensuring compliance
with discrimination law from individuals (through the pursuit of individual
complaints) to the Commission as a regulator and to businesses, organisations and
employers to resolve systemic discrimination.
223. The Commission has existing powers of inquiry, which enable it to inquire into acts
or practices of the Commonwealth that may be inconsistent with human rights (see
paragraph 11(1)(f) of the AHRC Act) and workplace discrimination, including
systemic discrimination, under its 'equal opportunity' jurisdiction (see paragraph
31(b) of the AHRC Act). However, its powers in relation to these two existing
inquiry functions are confined in scope. The human rights inquiry function is limited
to acts by or on behalf of Commonwealth agencies or under Commonwealth laws
(noting that the Commission can exercise a range of investigation powers in
connection with this function). The Commission cannot exercise investigatory
powers in relation to its equal opportunity inquiry function unless it is investigating
a Commonwealth agency, and this function is confined to workplace discrimination
as it is derived from ILO Convention 111. Noting these limitations, the
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Respect@Work Report recommended the Commission be given a broad inquiry
function to investigate issues of systemic discrimination.
224. The Bill would provide that the Commission can inquire into any matter that may
relate to systemic unlawful discrimination or suspected systemic unlawful
discrimination. The Bill would define 'systemic unlawful discrimination' to mean
unlawful discrimination that:
• affects a class or group of persons; and
• is continuous, repetitive or forms a pattern.
225. This definition would enable the Commission to inquire into instances of unlawful
discrimination within individual businesses as well as instances of unlawful
discrimination across multiple businesses within a broader industry or sector. It
would also enable the Commission to inquire into individual businesses or other
organisations where it is suspected that unlawful discrimination may be occurring.
226. The Bill would enable the Commission to perform its systemic inquiry functions
when requested to do so by the Minister or when it appears to the Commission to be
desirable to do so. References to 'the Minister' mean the Minister administering the
provision on the relevant day, in relation to the relevant matter, pursuant to the Acts
Interpretation Act. This would allow the Commission to commence an inquiry on its
own motion, such as where an organisation has requested it do so or it has become
aware of issues relating to an organisation. The Commission would be able to use a
number of investigatory powers throughout an inquiry, consistent with its existing
powers in the AHRC Act (the ability to compel information and documents, and
examine witnesses, with penalties for non-compliance). Once the Commission has
inquired into a matter, it may report to the Minister in relation to the inquiry, and, if
appropriate, make recommendations to address the issues identified.
Item 1
227. Item 1 of Schedule 3 would insert a definition of 'systemic unlawful discrimination'
into subsection 3(1) of the AHRC Act (the 'interpretation' section containing key
definitions), which would refer to the definition contained in new subsection 35L(2)
inserted by item 7 of the Bill.
228. Given the defined term 'systemic unlawful discrimination' is only used in new
Division 4B of Part II of the AHRC Act, the substantive definition has been included
there rather than in section 3.
229. It is important to note that the term 'systemic' is also used in the context of the
Commission's equal opportunity function (see sections 31 and 32A of the AHRC
Act). Under this function, the Commission is able to inquire into any act or practice
(including any systemic practice) that may constitute discrimination, noting this is
65
limited to workplace discrimination and the Commission cannot exercise its
investigatory powers in the context of exercising this function except in relation to
Commonwealth agencies. It is not intended that the definition of 'systemic unlawful
discrimination' in new Division 4B of Part II would apply to the Commission's
equal opportunity function, or constrain the way 'systemic practice' is interpreted in
that context.
Items 2 - 4
230. Items 2 and 3 of Schedule 3 would insert a reference to paragraphs 35L(1)(a) and
35L(1)(b) into existing subsection 8(6) of the AHRC Act.
231. New paragraph 35L(1)(a) provides for the Commission's new systemic unlawful
discrimination inquiry function and new paragraph 35L(1)(b) provides that the
Commission may do anything incidental to that function. Existing subsection 8(6) of
the AHRC Act provides that certain functions provided for in the AHRC Act shall
be performed by the President of the Commission, regardless of whether the
functions are expressed as being performed by 'the Commission' or a 'member of
the Commission'. As amended by these items, subsection 8(6) would clarify that the
systemic unlawful discrimination inquiry function being conferred on the
Commission by the Bill is to be exercised by the President, regardless of the
reference in subsection 35L(1) to the functions being conferred on the Commission.
232. Under existing subsection 19(2) of the AHRC Act, which deals with delegation, the
President (as a member of the Commission - see paragraph 8(1)(a) of the AHRC
Act) would be able to delegate the systemic unlawful discrimination inquiry function
to another member of the Commission, a member of the staff of the Commission or
any other person. This would mean that the President could delegate the systemic
unlawful discrimination inquiry function to another member of the Commission,
such as the Sex Discrimination Commissioner (for example where the relevant issue
concerns sexual harassment or gender identity discrimination), or a member of staff
of the Commission, such as a team leader responsible for issues of disability
discrimination (for example where the relevant issue concerns disability
discrimination). The delegation of this inquiry function by the President would not
require the approval of the Commission, given the operation of existing subsection
19(2C).
233. Practically, it may be necessary for another person within the Commission to
conduct an inquiry into systemic unlawful discrimination on the President's behalf,
as the President has limited time and resources to perform all the functions conferred
on them under the AHRC Act. Section 19 of the AHRC Act already recognises that
practical reality, and the approach in Schedule 3 of the Bill is consistent with the
way the Commission's existing human rights and equal opportunity functions
operate (with the exception that the delegation of those inquiry functions to other
66
members of the Commission is confined to the Human Rights Commissioner - see
subsection 19(2B)).
234. However, if a report is provided to the Minister at the conclusion of the inquiry
(under new section 35Q), it would need to be provided by the President given the
operation of subsection 8(6A) as amended by item 4.
235. Item 4 would insert a reference to section 35Q into existing subsection 8(6A). New
section 35Q provides that at the conclusion of an inquiry into systemic unlawful
discrimination, the Commission may report to the Minister or publish a report in
relation to the inquiry (noting the reference to the Commission should be read as a
reference to the President, given the operation of subsection 8(6) as amended by this
Bill). Subsection 8(6A) currently provides that the Commission's power to report at
the conclusion of a human rights inquiry or an equal opportunity inquiry (under
sections 20A and 32A, respectively) must be exercised by the President. Including a
reference to section 35Q in subsection 8(6A) would mean the President is required
to report at the conclusion of an inquiry into systemic unlawful discrimination,
consistent with the existing inquiry functions in the AHRC Act. The President would
not be able to delegate this reporting function, given the operation of subsection
19(2BA), which provides that the President cannot delegate any powers that they
can exercise because of subsection 8(6A).
Items 5-7
236. Item 5 of Schedule 3 would insert new paragraph (1)(db) into existing subsection
11(1) of the AHRC Act referring to 'the functions conferred on the Commission by
section 35L'.
237. Subsection 11(1) of the AHRC Act provides for the Commission's functions, such
as the conciliation of complaints of unlawful discrimination, education and outreach,
human rights inquiries and equal opportunity inquiries. New section 35L would
confer the functions of inquiring into systemic unlawful discrimination (and doing
anything incidental to that function) on the Commission. Including a reference to
section 35L in subsection 11(1) would ensure the list of Commission functions
towards the beginning of the AHRC Act includes their new inquiry function as
conferred on them by this Bill.
238. Item 6 would insert paragraph 11(3C) to provide that despite new paragraph
(11(1)(db), the Commission cannot inquire into a matter that may relate to systemic
unlawful discrimination or suspected unlawful discrimination of an intelligence
agency.
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239. Subsection 11(4) explains that the reference to intelligence agencies in subsection
11(3) means:
• the Australian Secret Intelligence Service
• the Australian Security Intelligence Organisation
• the Office of National Intelligence
• the Australian Signals Directorate
• that part of the Defence Department known as the Australian
Geospatial-Intelligence Organisation (including any part of the Defence
Force that performs functions on behalf of that part of the Department), or
• that part of the Defence Department known as the Defence Intelligence
Organisation.
240. Item 7 would amend subsection 11(4) by substituting the reference to subsection (3)
with 'any of the subsections (3) to (3C)'. This would ensure that the definition of
intelligence agencies would apply to new subsection 11(3C), as well subsections
11(3A)-(3B) relating to positive duty inquiries into intelligence agencies (see item
15 in Schedule 2).
241. The practical effect of this amendment would be to carve out intelligence agencies
from the Commission's jurisdiction in relation to the systemic unlawful
discrimination inquiry function. This is appropriate to protect the security of
information and functions within the intelligence community, protecting the 'need to
know' principle and confidentiality by limiting the number of people investigating
matters relating to them. It is also consistent with the existing approach in the AHRC
Act in relation to that community, which recognises the Commission's expertise
does not extend to balancing the needs of intelligence agencies and issues of national
security more broadly.
242. However, the Commission would not be able to transfer the exercise of this inquiry
function to the IGIS, given it would require the application of specialised human
rights expertise above and beyond those the IGIS is currently required to exercise to
deal with individual complaints made under the AHRC Act and transferred by the
Commission to the IGIS. Unlike individual complaints of unlawful discrimination or
inquiries into compliance with the positive duty, systemic unlawful discrimination
inquiries do not have a clear nexus to an individual complaint or to an individual
accessing the protection of their rights under the Commonwealth anti-discrimination
framework. Rather, systemic unlawful discrimination inquiries are about applying
the anti-discrimination framework to an organisation or an industry and examining
systems of governance and procedure.
243. Nonetheless, unlawful discrimination in intelligence agencies will continue to be
subject to robust oversight by the IGIS. Under section 8 of the IGIS Act, the IGIS
may inquire into any act or practice that is unlawful under the AD Act, DD Act, RD
68
Act or SD Act, being an act or practice referred to the Inspector-General by the
Commission. Where the IGIS completes an inquiry, the IGIS provides a report with
the IGIS' conclusions and recommendations to the responsible Minister and head of
the relevant Commonwealth agency.
Item 8
244. Item 8 would insert new Division 4B into Part II of the AHRC Act, entitled
'Functions relating to systemic discrimination'. Division 4B would provide for the
new systemic unlawful discrimination inquiry function and associated arrangements.
It would confer the new function on the Commission (new subsection 35L(1)),
provide for the definition of 'systemic unlawful discrimination' (new subsection
35L(2)) - in effect, the threshold for exercising the inquiry function - as well as the
circumstances in which the function could be exercised by the Commission (new
subsection 35M). It would also provide for the powers the Commission could
exercise while undertaking the new inquiry function (new section 35N), and for the
President of the Commission to report to the Minister at the conclusion of an
inquiry.
245. New Division 4B would be located in Part II of the AHRC Act after the human
rights inquiry and equal opportunity inquiry functions (Divisions 3 and 4
respectively).
246. Subsection 35L(1) confers on the Commission the ability:
(a) to inquire into any matter that may relate to systemic unlawful
discrimination or suspected systemic unlawful discrimination; and
(b) to do anything incidental or conducive to the performance of any of the
preceding functions.
247. Under paragraph 35L(1)(a), the Commission would be able to inquire into 'any
matter' that 'may' relate to systemic unlawful discrimination or suspected unlawful
discrimination.
'Any matter that may relate to'
248. The reference to 'any matter' would ensure the Commission has broad remit to
inquire into a range of matters where they may relate to systemic unlawful
discrimination or suspected unlawful discrimination as defined in subsection 35L(2).
This could include, for example:
• types of conduct, such as the way a particular organisation employs people
• policies, protocols and procedures, such as a policy that an employer has
adopted in relation to leave
69
• attitudes that appear to be prevalent across a particular sector, such as that
persons with a certain type of disability are not able to work in that sector
• outcomes in a particular organisation, such as where it appears that certain
people with a particular attribute are the subject of different treatment or
do not seem to achieve the same results or outcomes as others
249. In this way, it could be that an apparent indicator or symptom of systemic unlawful
discrimination causes the Commission to initiate an inquiry into an organisation or
an industry.
250. The reference to 'that may relate to' would also give the Commission the ability to
inquire into matters where it may not yet be clear that systemic discrimination is at
play. In some cases, it may be difficult to know confidently whether systemic
unlawful discrimination is present given its often hidden or obfuscated nature. It is
not always obvious that unequal outcomes are produced by systems, structures and
institutions rather than individual actions, for example. Systemic discrimination is
not generally caused by differential treatment but by systems that produce
differential outcomes, often without an organisation's direct knowledge or intention.
'Suspected systemic unlawful discrimination'
251. The reference to suspected systemic unlawful discrimination in paragraph 35L(1)(a),
in addition to systemic unlawful discrimination, would clarify that the Commission
has the breadth to look into issues that need not (yet) be fully substantiated as
unlawful discrimination. There is no requirement the Commission have, for
example, a reasonable suspicion that unlawful discrimination has occurred
(compared to the positive duty inquiry function).
252. This would enable, for example, the Commission to inquire into an organisation
after a series of calls to the Commission from individuals that are concerned with the
way certain staff are treated in a clothing store chain. Those calls may be from
members of the public who have witnessed certain behaviour, or from staff at the
store. There is no requirement that the Commission receive a formal complaint
under one of the Commonwealth anti-discrimination Acts to initiate a systemic
unlawful discrimination inquiry, nor for that complaint to have been completed and
a finding of unlawful discrimination been made. The Commission may receive a
picture of intelligence from a range of sources indicating that there may be unlawful
discrimination of a systemic nature occurring at that clothing store, and decide to
initiate an inquiry.
253. Paragraph 35L(1)(b) would enable the Commission to do anything incidental or
conducive to the performance of its systemic unlawful discrimination inquiry
function. This is similar to paragraphs 11(1)(p) (in the context of the Commission's
70
functions generally) and 31(k) (in the context of the Commission's equal
opportunity function) of the AHRC Act.
'Systemic unlawful discrimination' threshold
254. Subsection 35L(2) provides for the definition of 'systemic unlawful discrimination'.
It would be defined as unlawful discrimination that affects a class or group of
persons, and is continuous, repetitive or forms a pattern.
Unlawful discrimination
255. The first element of this definition is 'unlawful discrimination', which takes its
meaning from section 3 of the AHRC Act (noting that definition would be amended
by the Bill). Section 3 provides that unlawful discrimination means any acts,
omissions or practices that are unlawful under certain Parts of the AD Act, DD Act,
RD Act and SD Act, which contain the core prohibitions from each of those Acts
(for example, Part 4 of the AD Act, which contains the prohibitions on unlawful age
discrimination in a range of areas of public life). This means that to be considered
systemic unlawful discrimination, something must first be an act, omission or
practice that is unlawful under the relevant Parts of the four Commonwealth
anti-discrimination Acts.
256. By drawing from this definition, the Commission's inquiry function would mirror
the scope of the prohibitions on unlawful discrimination in the Commonwealth
anti-discrimination Acts. The Commission could therefore inquire into acts,
practices and omissions by a range of persons and entities, including state and
territory bodies. For example, where the Commission considers there is a matter that
may relate to systemic unlawful sex discrimination to do with a state agency's
employment practices, it may initiate an inquiry into those practices. Section 14 in
Part II of the SD Act provides that it is unlawful for an employer to discriminate on
the ground of sex in determining who should be offered employment or in the terms
or conditions of employment (among other things). In practice, if the Commission
were considering initiating an inquiry into a state or territory agency they would
engage in early communication with the relevant human rights body in that
jurisdiction to ensure there is no duplication of efforts and to support cooperation
between the bodies, where necessary and appropriate.
Affects a class or group
257. The elements in paragraphs 35L(2)(a)-(b) go to what makes unlawful discrimination
systemic for the purposes of the Commission's inquiry function. As a general
proposition, systemic discrimination is considered to describe "patterns or practices
of discrimination that are the result of interrelated policies, practices and attitudes
that are entrenched in organisations or in broader society" that "create or perpetuate
71
disadvantage for certain groups".47 This reflects the institutionalised or entrenched
nature of systemic discrimination, as well as its typical scale and breadth, generally
affecting whole groups or classes of persons.
258. Paragraph 35L(2)(a) requires that the unlawful discrimination affects a class or
group of persons. This is a similar requirement to subparagraph 127(a)(ii) of the
Victorian Equal Opportunity Act 2010, which provides for the Victorian Human
Rights and Equal Opportunity Commission's inquiry function. These terms are
intended to take their ordinary meaning. The terms would require that the unlawful
discrimination affect more than one person, and likely several.
259. A 'class' of persons would cover a situation where a category of persons with some
common attribute are affected by unlawful discrimination. For example, this could
cover a situation where a number of women across a particular industry are
dismissed from their jobs when they reach a certain age, whereas their male
counterparts are not. The women share both their age and sex in common, and the
unlawful discrimination in this scenario could be based on age (under the AD Act)
or sex (under the SD Act). It could also cover a situation where visa holders working
in a particular industry, across a number of different employers, are given less
favourable employment conditions than their colleagues who are Australian citizens.
The discrimination in this scenario could be based on race (under the RD Act).
260. While potentially overlapping with the concept of a class, a 'group' of persons
would also encompass the situation where the persons affected do not necessarily
share a common attribute but are nonetheless similarly affected by the unlawful
discrimination. For example, this could cover a situation where a number of persons
in the one company are similarly affected, for different reasons, by the introduction
of an internal redundancy policy to make redundant persons who have taken
significant periods of leave during their time at the company. The policy affects
parents at the company who have taken periods of leave around a child's birth, as
well as persons with a chronic illness who have had periods of leave to
accommodate medical treatment. The discrimination in this situation could therefore
be based on family responsibilities (under the SD Act) or disability (under the DD
Act).
Continuous, repetitive or forms a pattern
261. Paragraph 35L(2)(b) requires that the unlawful discrimination is continuous,
repetitive or forms a pattern. To satisfy this element of the definition of systemic
unlawful discrimination, the unlawful discrimination need only meet one of these
sub-elements (be continuous, repetitive or form a pattern).
47 An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (Final Report, June 2008) 11.
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262. The term 'continuous' would refer to unlawful discrimination that is ongoing and
continuing to affect persons, rather than a one-off instance of unlawful
discrimination. For example, this could refer to a corporate accommodation
provider's terms and conditions that provide that persons under the age of 25 will
not be able to book accommodation with the provider, on the basis that they are
considered less likely to care for the hired premises. The terms and conditions are
current and in place, and so continuous in their discriminatory effect on young
persons.
263. The term 'repetitive' would refer to unlawful discrimination that may not necessarily
be continuous or ongoing, but is repeated in a similar or related manner over time.
For example, this could apply to a situation where many persons from a non-English
speaking background are consistently unable to achieve promotions in particular
sales industry. This is because everyone seeking a promotion is required to pass a
verbal 'Australian lingo' test that is excessively challenging for non-English
speaking persons and not inherently related to, or necessary for, the work of the
industry. The discrimination in this instance is repetitive in the sense that on regular
occasions across the industry, persons from a non-English background are denied a
promotion.
264. The reference to 'forms a pattern' would include situations where unlawful
discrimination appears to be occurring through the emergence of a related or regular
series of outcomes or events. For example, this might cover a situation where over
time, it becomes apparent to the Commission that persons with disability are
experiencing unfair or disrespectful treatment at a range of theme parks across the
country. Persons are separately reporting their experiences where, for example, they
are admitted to the venue and assessed for certain rides, but then told when lining up
for those rides to return to the administration office for further assessments or
subjected to lengthy delays before being able to ride. From the multiple reports
across various venues, it is clear to the Commission that the behaviour points to a
pattern of disability discrimination. A further example could be where media reports
indicated that a number of women across a traditionally male-dominated industry are
making claims of sexual harassment to their employers. This may indicate to the
Commission that there is a pattern emerging across this industry that there are
certain risk factors that need to be addressed in order to reduce the prevalence of
sexual harassment.
265. The 'forms a pattern' limb of the definition of systemic unlawful discrimination
could also include the situation where an informal policy perpetuates discriminatory
conduct. For example, this might include a situation where a school admissions
board follows an informal practice of accepting only one admission from a student
with disability each year, to minimise the school's costs associated with providing
reasonable adjustments for students with disability. The Commission may be alerted
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to this through information from a series of families who have indicated their child's
admission was refused.
Section 35M - When the Commission can initiate an inquiry
266. Section 35M provides for the circumstances in which the Commission can perform
its systemic unlawful discrimination inquiry function, conferred on it by section
35L(1)(a). While section 35L confers the function on the Commission and provides
for the threshold of what they can inquire into (that is, what constitutes systemic
unlawful discrimination), section 35M provides for when the Commission can
inquire into it.
267. The Commission may perform this inquiry function either when it is requested to do
so by the Minister (paragraph 35M(a)) or where it appears to the Commission to be
desirable to do so (paragraph 35M(b)). This would enable the Attorney-General to
request that the Commission initiate a systemic unlawful discrimination inquiry, but
also empower the Commission to inquire into matters on its own motion and without
the need for a ministerial request or an individual complaint (or other precondition to
be met).
268. Under this inquiry function, there is no prerequisite that an individual makes a
formal complaint to the Commission before it can initiate an inquiry, in contrast to
some other inquiry functions under the AHRC Act. The explicit intention of the
systemic unlawful discrimination inquiry function, much like the positive duty
compliance function, is to alleviate the burden on individuals to make a complaint in
order for the issue they face to be addressed. The inquiry function enables the
Commission to be proactive and initiate investigations on its own motion in a broad
range of circumstances. While there is no prerequisite for an individual complaint to
initiate an inquiry, complaints data may well inform a decision by the Commission
to initiate an inquiry. It is also not intended that the inquiry function would preclude
persons from making individual complaints of unlawful discrimination, or
representative applications, to the Commission, but this would be internally
managed by the Commission to maintain clear separation between functions.
269. The Commission may become aware of a matter that may relate to systemic
unlawful discrimination in a number of ways, including though its National
Information Service, through complaints data (as mentioned above), through reports
in the media, in the course of performing its other functions under the AHRC Act
(such as education, outreach and research) or through representations from
stakeholders or community groups.
270. The broad remit provided for in paragraph 35M(b) would also mean that the
Commission could decide to initiate an inquiry as a result of a voluntary approach
made by an organisation seeking to have the Commission inquire into any issues
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they suspect their organisation has in relation to unlawful discrimination, as long as
the Commission was satisfied that the requirements in section 35L were also met.
Section 35N - Commission powers
271. Section 35N provides for the application of some of the Commission's existing
powers, as well as associated penalties for non-compliance and other provisions
under Division 3 of the AHRC Act, to the new inquiry function located in Division
4B.
272. The existing provisions in Division 3 that would be applied by this Bill to the new
inquiry function in Division 4B would operate in the same way as they currently do.
273. The powers and associated provisions relate to matters being dealt with by the
Commission under Division 3 (the Commission's human rights inquiry function), so
it is important that they are applied to new Division 4B. This is broadly consistent
with the way the powers and associated provisions are applied to the Commission's
equal opportunity functions (see existing section 33 of the AHRC Act). Section 35N
clarifies that the existing powers and associated provisions would apply as if the
existing provisions in Division 3 referred to the inquiry function under Division 4B.
274. The exercise of the powers as applied to the Commission's new inquiry function
could be delegated to a member of the Commission, a member of the staff of the
Commission or another person or body of persons by writing under its common seal,
pursuant to subsection 19(1) of the AHRC Act.
275. The powers and associated provisions that are applied to the Commission's systemic
unlawful discrimination inquiry function are as follows:
• Section 21 - the power to obtain information and documents, including the
power to require someone to attend to answer questions;
• Section 22 - the power to administer an oath or affirmation to someone
attending before the Commission and examine them on oath or
affirmation;
• Section 23 - penalties for failing to provide information or documents, or
failing to be sworn or make an affirmation when attending before the
Commission (10 penalty units);
• Section 24 - provisions around what information, documents and
testimony can and cannot be compelled, and immunities available for
persons who are compelled; and
• Subsection 26(1) - a penalty for hindering, obstructing, molesting or
interfering with a member of the Commission or someone acting on behalf
of the Commission while conducting or participating in inquiry,
examination or investigation.
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276. As a result of the application of these provisions, the Commission would be able to
exercise these powers in the performance of inquiries into systemic unlawful
discrimination. They could therefore serve a person with a written notice requiring
they produce information or documents by a certain time, provided the Commission
believes the person is capable of giving information or producing documents
relevant to a systemic unlawful discrimination inquiry they are undertaking
(consistent with the requirements of existing section 21). For example, where a
member of staff of the Commission is responsible for inquiring into an
industry-wide matter concerning disability discrimination, they could serve each
business they believe has information relevant to the inquiry with a written notice
requiring that each business provides that information within a period of two weeks.
If a business does not comply with the notice, they would be liable to 10 penalty
units (pursuant to paragraph 23(1)(b) of the AHRC Act).
277. With the application of these information gathering and examination powers to the
systemic unlawful discrimination inquiry function comes the associated application
of existing provisions that abrogate the privilege against self-incrimination and legal
professional privilege (where relevant legal advice was provided to a Minister, the
Commonwealth, or an authority of the Commonwealth) and of protections for
persons who will be subject to the exercise of those powers.
278. Existing subsection 24(3) provides that a person is not excused from providing
information or giving evidence on the ground that it would disclose legal advice
furnished to a Minister, to a person or body that acts on behalf of the
Commonwealth, or to an authority of the Commonwealth (paragraph 24(3)(c));
would contravene the provisions of another law or would be contrary to the public
interest (paragraph 24(3)(d)); or might make the person liable to a penalty
(paragraph 24(3)(e)).
279. These existing provisions, as applied to the Commission's new inquiry function, will
support the Commission's oversight and regulatory functions to do with unlawful
discrimination, which are pursued in the public interest and to enforce and uphold
human rights. The Commission's new inquiry function, much like its existing
functions, will enable them to investigate matters of major public importance that
have a significant impact on the community. Systemic discrimination has a corrosive
impact on people's rights and freedoms and their ability to work and access services,
among many other negative impacts. The Commission is also able to inquire into
government bodies, so it is important that it have access to the full facts and issues at
play.
280. Of note, there are several protections that balance these powers, including
subsections 23(2A) and (3), which provide that a person will not be penalised under
the AHRC Act for failing to produce a document or information, including under
76
examination, if they have a reasonable excuse, including that it would tend to
incriminate them. Further, subsection 24(4) provides that a person will not be liable
for any penalty under another law by virtue of producing a document or providing
information, including under examination.
Section 35P - Reasonable opportunity to make submissions
281. New section 35P would require the Commission to give reasonable opportunity to
make written or oral submissions before making an adverse finding about a person
as part of an inquiry into suspected unlawful discrimination under new Division 4B.
282. This requirement reflects a core aspect of procedural fairness and is similar to
existing section 27 of the AHRC Act in relation to the Commission's human rights
inquiry function. It would mean that if the Commission, as part of its inquiry,
formed the view that a person (including an organisation or business) had engaged in
unlawful discrimination, it would need to ensure it had invited that person to provide
written submissions or appear before it prior to making a finding of unlawful
discrimination. A 'finding' could be a statement put forward in a report to the
Minister under new section 35Q, or a formal conclusion put to person who is the
subject of the adverse finding or to the persons affected by the unlawful
discrimination. It would need to be something more formal than the informal views
expressed by the Commission internally for the purposes of conducting the inquiry.
Section 35Q - Reports
283. New section 35Q enables the Commission to report to the Minister or publish a
report at the conclusion of an inquiry into systemic unlawful discrimination, or both
(subsection 35Q(1)), including on any recommendations for addressing the matter
that was the subject of the inquiry (subsection 35Q(2)). This reporting mechanism
would be a discretionary power, and not a mandatory requirement, and would need
to be performed by the President (pursuant to subsection 8(6A) as amended by this
Bill).
284. This provision would give the Commission the opportunity to provide the Minister
with oversight of the inquiry's purpose and findings, and any recommendations the
Commission considers should be implemented to address the issues identified
throughout the inquiry and in support of its findings. The provision would also
enable the Commission to publish a report on its website, regardless of whether the
report is provided to the Minister.
285. The report might identify recommendations for a range of actors to implement based
on the scale and nature of the issues identified through the inquiry - for example, for
the person or persons subject to the inquiry (such as taking immediate action to
rectify a policy or practice), the government (to undertake law reform), or other parts
of society (such as industry or peak bodies to develop standards or codes), or a
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combination of these. The publication of these reports may promote greater
transparency and understanding of systemic discrimination, both for employers and
the broader community.
286. Existing subsection 36(9) is a deeming provision which provides that when a person
who is not a member of the Commission is acting as a President or Human Rights
Commissioner, the person shall be deemed to be a member of the Commission, for
the purposes of sections 21, 22, 23, 24, 26 (including those sections as applied by
33) 48 and 49. Item 9 inserts section 35D (see item 8 in this Schedule) into this
provision so that these acting arrangements would now apply for the purposes of
sections 21, 22, 23, 24, 26 (including those sections as applied by 33 and 35N), 48
and 49.
287. Any reports produced for the Minister under new section 35Q would not have to be
tabled in Parliament, pursuant to section 46 of the AHRC Act as amended by this
Bill (see item 10).
288. As previously noted in relation to the systemic unlawful discrimination inquiry
function more broadly, it is not intended that this function preclude the making of
individual complaints of unlawful discrimination. The Commission would internally
manage this in order to maintain separation between functions, like other regulatory
bodies that are responsible for both complaints-handling and inquiry functions.
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Schedule 4 - Representative applications
Australian Human Rights Commission Act 1986
289. The Bill would amend the AHRC Act to enable representative bodies to make
representative applications in the federal courts on behalf of people who have
experienced unlawful discrimination. These amendments would allow representative
applications to be made with respect to any unlawful discrimination matter under
Part IIB, Division 2 of the AHRC Act. These amendments would implement
recommendation 23 of the Respect@Work Report, which recommended that the
AHRC Act be amended to allow unions and representative groups to bring
representative claims to the federal courts.
290. The Respect@Work Report recognised that engaging with the complexities of the
court system can be difficult and costly for applicants and representative
applications can provide a mechanism for genuine cases to be heard. It was also
noted that representative applications may be particularly valuable in circumstances
where a systemic problem affects a wide class of persons. Therefore, the
Respect@Work Report concluded that there are advantages to enabling
representative bodies to pursue unlawful discrimination matters in the federal courts
on behalf of others.
291. The AHRC Act currently enables representative bodies, such as unions, to lodge a
representative complaint in the Commission on behalf of at least one person (see
section 46PB). However, where a complaint is terminated in the Commission, only
'any person who was an affected person in relation to the complaint' has standing to
initiate proceedings in the federal courts (see subsection 46PO(1)). The use of the
term 'affected person' currently prevents representative bodies from pursuing a
representative complaint in the federal courts. This means that the ability to initiate
court proceedings under the AHRC Act is more constrained than the ability to bring
complaints to the Commission. This creates procedural challenges in relation to
representative complaints.
292. Part IVA of the FC Act allows representative proceedings to be commenced in the
Federal Court of Australia in distinct circumstances, in what are known as 'class
actions'. Representative proceedings may be commenced where there is a group of
seven or more people with claims against the same person, the claim relates to
similar circumstances, and the claim gives rise to a common issue of law or fact.48
Additionally, a person can only commence representative proceedings on behalf of
affected individuals if they would also have a sufficient interest to commence a
proceeding on their own behalf against another person.49 In the anti-discrimination
context, the mechanisms for representative proceedings under the FC Act are rarely
48 Federal Court of Australia Act 1976 (Cth) s 33C(1).
49 Ibid s 33D(1).
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used because of these technical and complex requirements which differ from the
requirements for bringing representative complaints to the Commission.
293. The Bill would remove the existing procedural barriers in the AHRC Act by
ensuring that a representative body that has lodged a representative complaint is able
to make an application to the federal courts (under section 46PO), if the
representative complaint is terminated. This would enable representative bodies to
continue to lead a representative complaint from the Commission to the federal
courts.
Item 1
294. Item 1 would insert a new definition into subsection 3(1) of the AHRC Act to
provide that a representative application is an application made under subsection
46PO(1), that is made on behalf of at least one person other than the person making
the application. Subsection 46PO(1) provides the mechanism for applications to be
made to the federal courts, alleging unlawful discrimination by one or more of the
respondents to the terminated complaint.
295. This definition explicitly excludes an application that commences a representative
proceeding, known as a class action, in accordance with Part IVA of the FC Act. In
doing so, this Bill does not interfere with the existing and separate mechanisms for
class actions under the FC Act.
Item 2
296. This item would insert a subheading entitled 'Making an application' above
subsection 46PO(1). The procedural requirements for initiating an application in
court would be located below this subheading (subsections 46PO(1)-(2) and new
subsection 46PO(2A)). Given the further amendments which would be made to
section 46PO (see items 6-7), this subheading would increase the structure and
clarity of this section.
Items 3 - 4
297. Item 3 amends subsection 46PO(1) by removing the condition that only an 'affected
person' in relation to the complaint may make an application to the federal courts in
relation to a terminated complaint. Subsection 46PO(1) would now provide that if
the requirements of paragraphs 46PO(1)(a)-(b) are met, an application may be made
to the federal courts alleging unlawful discrimination by one or more of the
respondents to the terminated complaint. By omitting the reference to an affected
'person', this amendment removes the procedural barrier which prevented
representative bodies from initiating representative applications.
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298. Item 4 would repeal the note contained in subsection 46PO(1) which refers readers
to the provisions in Part IVA of the FC Act which also allow for representative
proceedings in certain circumstances. This note would be more appropriately located
in new subsection 46PO(2A) (see item 5).
Item 5
299. New subsection 46PO(2A) would be inserted to provide additional clarity about who
can make an application to the federal courts. It is intended to provide certainty that
representative bodies can pursue representative applications.
300. Under paragraph 46PO(2A)(a), an application may be made by an affected person in
relation to the terminated complaint. This new paragraph is a clarifying provision as
it covers terminated complaints which could already proceed to the federal courts
under the existing laws. This may be where an affected person pursues proceedings
in relation to the terminated complaint individually, or on behalf of themselves and
one or more affected persons.
301. Under paragraph 46PO(2A)(b), an application may also be made by 2 or more
affected persons in relation to the terminated complaint. This paragraph covers
terminated complaints lodged by one or more affected persons themselves, or on
behalf of themselves and one or more affected persons. Again, this provision has a
clarifying effect as these terminated complaints could already be pursued in the
federal courts under the existing laws.
302. Paragraph 46PO(2A)(c), provides that an application can be made by a 'person or
trade union' who lodged the terminated complaint, on behalf of one or more affected
persons in relation to the terminated complaint. This means that as is the case for
representative complaints, representative bodies cannot commence an application in
the federal courts unless it is on behalf of at least one affected person. This provision
uses the same language as the current representative complaint provisions in the
AHRC Act (see paragraph 46P(2)(c)). All representative bodies would be captured
by this provision given the term 'person' covers both individuals and organisations
(pursuant to section 2C of the Acts Interpretation Act).
303. However, the term 'person or trade union' is broader than only enabling
representative bodies to make representative applications. The Respect@Work
Report recommends that the AHRC Act be amended to allow unions and other
representative groups to bring representative claims to court, consistent with the
existing provisions in the AHRC Act that allow unions and other representative
groups to bring a representative complaint to the Commission.50 Consequently, this
provision uses the language of 'person or trade union' to ensure consistency with the
50 Respect@Work Report (n 1) 501.
81
current representative complaints provisions and to guarantee that there is no
narrowing in standing between the Commission and federal court stages.
304. The note repealed by item 4 would be inserted below new subsection 46PO(2A).
This note is more appropriately located in this new subsection (rather than its
previous location in subsection 46PO(1), as it relates to when a representative
application may be made under the AHRC Act. This note refers readers to the
provisions in Part IVA of the FC Act which also allow for representative
proceedings in certain circumstances. Again, it is noted that the conditions for
pursuing representative proceedings under the FC Act are distinct from those in the
AHRC Act and would not be amended by this Bill.
Item 6
305. This item would insert a subheading entitled 'Court orders' after subsection
46PO(3A). Given the further amendments which would be made to section 46PO
(see item 7), this subheading would increase the structure and clarity of this section.
Item 7
306. New subsection 46PO(4A) would be inserted to provide that in the case of a
representative application, subsection (4) applies as if a reference to an applicant
includes a reference to a person on whose behalf the application is made. Subsection
(4) sets out the orders that the federal courts concerned may make if satisfied that
there has been unlawful discrimination by any respondents. This amendment ensures
that the courts concerned can make the same orders with respect to representative
applications as they could for applications made by individuals.
Item 8
Section 46POA - Conditions for making a representative application
307. New section 46POA specifies a number of conditions, in addition to those set out in
new subsection 46PO(2A), for making representative applications. These provisions
provide clarity around the new mechanisms for representative applications,
including requirements to seek consent.
308. Subsection 46POA(1) requires that each person on whose behalf a representative
application is made must consent in writing to their inclusion. This is effectively an
opt-in approach. This differs to the situation in the Commission where a
representative complaint may be lodged without the consent of class members (see
subsection 46PB(4)). This approach is appropriate for conciliation in the
Commission as it is free, informal and confidential. However, consent is required in
the context of representative applications. This is because of the nature and
consequences of court, and the need to shield often vulnerable individuals from the
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emotional and mental toll associated with court proceedings unless they consent to
lodge a representative application. It is also noted that this opt-in approach differs to
the class action regime under Part IVA of the FC Act. This is because unlike class
actions, a representative application cannot be broadened to be on behalf of more
individuals at the court stage than were present at the time the representative
complaint was terminated in the Commission.
309. Paragraph 46POA(2)(a) provides that a representative application must describe or
otherwise identify the persons on whose behalf the application is made. This
promotes procedural fairness by ensuring the respondent can effectively respond to
the claims in the application. It also reflects the existing requirement for
representative complaints under section 46PO of the AHRC Act and therefore
promotes procedural consistency between the Commission and federal court stages.
310. Paragraph 46POA(2)(b) also requires that the representative application includes a
statement by the person making the application (i.e. the representative body),
certifying that each person on whose behalf the application is made has consented, in
writing, to the making of the application on the person's behalf. The purpose of this
provision is to ensure compliance with the consent requirement provided for in new
subsection 46POA(1).
311. Under paragraph 46POA(2)(c), the representative application must also specify the
nature of the relief sought. Again, this provision is consistent with existing
requirements for representative complaints and is important in ensuring procedural
fairness.
Section 46POB - Additional rules applying to representative applications
312. New section 46POB would be inserted to set out additional rules which apply to
representative applications made in the federal courts.
313. Under subsection 46POB(1), a person on whose behalf a representative application
is made is not entitled to make a separate application under subsection 46PO(1) in
respect of the same subject matter, unless the person opts out under subsection (3).
This provision precludes complainants from forum shopping thereby protecting
respondents from having to deal with multiple applications concerning the same
affected individuals and subject matter.
314. Subsections 46POB(2)-(5) allow a person on whose behalf a representative
application is made to opt out of the representative application and set out the
procedural requirements for them to do so. The reasons why a person may opt out of
proceedings will be varied, but could include where a person no longer agrees with
the strategic direction of the representative application so wishes to pursue the
matter in a separate application. In circumstances where a person opts out of a
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representative application to pursue the claim as an individual, they could do so by
lodging a new complaint with the Commission and being issued with a termination
notice (in the event that the complaint did not resolve), naming them as the
individual complainant.
315. Subsection 46POB(2) requires the court concerned to fix a date before which a
person may opt out of the proceedings commenced by the representative application
(the fixed date). Subsection 46POB(4) allows the court to extend this period and
change the fixed date on the application of the representative body, class member or
respondent. These provisions promote procedural fairness by ensuring that
respondents have an accurate understanding of the persons on whose behalf the
application is made at the time the hearing commences.
316. Subsection 46POB(3) creates a procedural requirement that to opt out of
proceedings, an individual must provide written notice to the court concerned before
the fixed date, and in accordance with the rules of the court concerned (if any).
These rules may include those related to representative proceedings in Part IVA of
the FC Act and Division 9.3 of the Federal Court Rules 2011.
317. Subsection 46POB(5) provides that the hearing of a representative application
cannot commence earlier than the fixed date, except with the leave of the court
concerned. This protects the right of a person on whose behalf a representative
application is made to opt out of the proceedings. The power of the court to grant
leave has been included to enable evidence to be taken before the period given to opt
out expires such as in cases where it might otherwise be lost, for example through
the death of a witness.
318. Subsection 46POB(6) provides that the court's approval must be obtained before
proceedings commenced by representative applications may be settled or
discontinued. Court approval is an important protection in ensuring that settlement
or discontinuance procedures are undertaken in the best interests of the persons on
whose behalf a representative application is made.
319. Under subsection 46POB(7), where a court has approved the settlement or
discontinuance of proceedings commenced by representative applications, it may
make orders with respect to the distribution of any money paid under a settlement or
paid into the court. This subsection confers discretion on the court to make these
orders as it considers just.
Illustrative example of representative actions
320. After working as a senior analyst for a large bank for more than 10 years, Sophie
takes a year of parental leave. During this period, the bank employs another person
to permanently fill Sophie's position. When Sophie seeks to return to work, she is
84
advised that the only role available is as an administrative officer, which is a
significant demotion. Sophie is told that she needs to perform this role for at least 6
months to 're-learn the basics and adjust to life as a working parent.' After
expressing concerns to her colleague Kristen, Sophie learns that many other women,
including Kristen, have been treated the same way when returning from parental
leave. Sophie contacts the Employment Equality Advocacy Centre (EEAC) for
advice, but is reluctant about pursuing the matter alone. Following discussions with
other affected women, the EEAC lodges a representative complaint against the bank
under paragraph 46P(2)(c) of the AHRC Act on behalf of Sophie, Kristen and two
other women alleging unlawful discrimination under the SD Act. The matter is not
successfully conciliated in the Commission and is terminated under subsection
46PH(1B)(b) of the AHRC Act. With the consent of the four women, the EEAC
makes a representative application in the federal courts under subsection 46PO(1) of
the AHRC Act. The EEAC bears the costs of the representative application in the
first instance, on the basis that it would recoup costs from any damages awarded in
the proceeding.
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Schedule 5 - Cost provisions
Australian Human Rights Commission Act 1986
321. The Bill would insert a cost protection provision in the AHRC Act to provide greater
certainty to parties during court proceedings in relation to costs. This amendment
would achieve the policy objective of recommendation 25 of the Respect@Work
Report.
322. Under the current framework, whilst federal courts have a broad discretion to award
costs in unlawful discrimination proceedings as they see fit, they generally follow
the practice of awarding costs following the event. This generally means that the
unsuccessful party is required to pay the costs of the successful party.
323. The Respect@Work Report heard that the risk of adverse cost orders acts as a
disincentive to applicants considering pursuing their sexual harassment matters in
the federal courts. It was noted the current practice, in which costs follow the event,
means that applicants may be liable for the costs of both parties if they are
unsuccessful. This may deter applicants from initiating court proceedings and
presents access to justice concerns, particularly for vulnerable members of the
community.
324. The approach to costs in this Bill would differ from the model recommended in the
Respect@Work Report, which 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. Instead, the Bill would adopt a 'cost neutrality'
approach in line with the Commission's updated position on costs protection reform
in its Free and Equal Position Paper.51 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, such as the financial circumstances of
the parties, the outcome of proceedings and the public importance of the matter.
Items 1 - 3
Section 46PSA - Costs
325. Section 46PSA will be repealed and replaced with a new cost provision which
applies to unlawful discrimination proceeding commenced under Part IIB,
Division 2 of the AHRC Act in the federal courts, as well as to appeals pursued in
51 Free and Equal Paper (n 45) 196.
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the High Court. Subsections 46PH(2A), 46PO(4) (notes 1 and 2) would be amended
as a result of new section 46PSA.
326. Under existing section 46PSA, the courts can have regard to an offer to settle in
deciding whether to award costs. Whilst this section would be repealed, offers made
to settle would be incorporated into paragraph 46PSA(3)(e) of the replacement
provision (see item 3).
327. New subsection 46PSA(1) provides that, as a default position, each party would bear
their own costs in unlawful discrimination proceeding. However, the courts would
retain discretion to depart from this default position and make orders as to costs
where they consider it just to do so (subsection 46PSA(2)). In considering whether
to depart from the default position, the court must have regard to a number of factors
set out in subsection 46PSA(3).
328. Subsection 46PSA(4) also provides that in the case of a representative application, if
the court considers there are circumstances justifying the making of a costs order,
the order can only be made against the representative body and not the individuals
on whose behalf the application is made. This promotes the purpose of
representative applications whereby the representative body takes on the burdens of
the proceedings.
Subsection 46PSA(1)
329. New subsection 46PSA(1) would provide that, as a default position, each party will
bear their own costs in unlawful discrimination proceeding commenced under
Part IIB, Division 2 of the AHRC Act. This provision would provide applicants with
a degree of knowledge and certainty over the costs they would be required to pay if
they commence legal proceedings. This would increase access to justice as
applicants are less likely to be deterred from litigating if they are not at risk of
paying a respondent's costs if unsuccessful.
330. Additionally, respondents, the majority of whom are not large corporations, would
also benefit from having greater understanding and control over the costs they would
be likely to pay under this provision. This understanding may encourage them to
engage to a greater extent in the efficient and less costly conciliation stage in the
Commission.
331. This position is the approach in state and territory tribunals that hear
anti-discrimination matters under state and territory legislation. Many legal
advocates maintain that this approach is a significant reason why they advise their
clients to lodge sexual harassment complaints with their state or territory
anti-discrimination body where possible. The new provision in this Bill would
87
ensure that the choice of jurisdiction can be made solely on the ground of which law
is the most appropriate in the circumstances.
Subsection 46PSA(2)
332. New subsection 46PSA(2) provides that the courts have discretion to depart from the
default position and make orders as to costs, as the court considers just. It would be
up to the court to determine the nature of any costs order by reference to what it
considers just in the circumstances. This may include orders allocating some or all of
the costs to either the applicant or the respondent depending on the circumstances of
the case.
333. This provision incorporates an important degree of flexibility by retaining the
discretion of the courts to make a costs order appropriate to the conduct and
circumstances of the parties and the merits of the matter.
334. This subsection must be read in conjunction with subsection 46PSA(3) as the court's
assessment into whether it should exercise its discretion and depart from the default
position can only be made after considering the circumstances set out in subsection
46PSA(3). Consequently, a finding of justifying circumstances is an essential
precursor to the court making a costs order under subsection (2).
Subsection 46PSA(3)
335. New subsection 46PSA(3) sets out the non-exhaustive circumstances that the court
must consider in assessing whether to make an order as to costs. The court would
have discretion to determine the weight (if any) that should be given to any one
circumstance. A single circumstance may justify the making of a costs order in some
matters, whilst a combination of several matters is required in others.
336. The circumstances provided for in subsection 46PSA(3) largely reflect the costs
provision in section 117 of the Family Law Act 1975. This means that the courts
have the expertise and experience in considering these circumstances.
337. Under paragraph 46PSA(3)(a), a circumstance to be considered is the financial
circumstances of each of the parties to the proceedings. This includes, but is not
limited to, their capacity to meet a potential costs order. This circumstance may be
particularly relevant where one party has significantly more financial resources than
the other.
338. Paragraph 46PSA(3)(b) provides that the conduct of the parties to the proceedings is
a relevant circumstance to be considered by the court in deciding whether to make
an award of costs. The conduct of a party would likely be most relevant where it has
significantly increased the costs of the matter for the other party. Relevant conduct
88
may include instituting proceedings vexatiously or without reasonable cause,
unreasonably causing the other party to incur costs through causing unnecessary
delays in proceedings, raising extraneous issues, failing to comply with Court orders
and rules, or otherwise abusing the processes of the court. The conduct of the parties
in dealing with the Commission may also be relevant, for example where a party has
failed to engage in conciliation in good faith, or at all.
339. Under paragraph 46PSA(3)(c), a further circumstance to be considered is whether
any party to the proceedings has been wholly unsuccessful in the proceedings. For
example, the court may make an award of costs against an unsuccessful respondent
on the basis that it may be unjust for the applicant to be financially disadvantaged by
having to bear their own legal costs where they have been wholly successful.
340. Paragraph 46PSA(3)(d) provides that whether any party to the proceedings has made
an offer in writing to another party to the proceedings to settle is a circumstance to
be considered. This includes whether offers were made to settle the proceedings, or
the matter at the Commission, and if so, the terms of the offer. These may include
offers to settle on financial or non-financial terms, or both such as an offer to
implement training and policies or provide an apology. For example, if in the course
of conciliation, the respondent offered a monetary settlement and the court
ultimately upheld the application and ordered the respondent to pay damages, the
court could consider that offer in determining whether to award costs in the
proceedings against the applicant. This provision is intended to discourage clearly
unmeritorious complaints from progressing to court. It is intended to deter recourse
to the courts where earlier settlement offers have been made that may reasonably be
regarded as equivalent to the remedy that the court has ultimately offered.
341. Under paragraph 46PSA(e), an additional circumstance to be considered is whether
the subject matter of the proceedings involves an issue of public importance. This
circumstance recognises the beneficial intent of anti-discrimination legislation and
the public interest associated with having discrimination laws enforced. These
proceedings also benefit the community through contributing to the development of
anti-discrimination jurisprudence.
342. Further, under paragraph 46PSA(3)(f), any other relevant matter may be considered.
This provides the court with discretion to consider the unique circumstances of a
matter. The Respect@Work Report found that the damages awarded in sexual
harassment matters have historically been significantly lower than comparable
jurisdictions, such as defamation. Consequently, the proportion of a successful
claimant's legal costs in comparison to their damages award may be a relevant
circumstance for the court to consider. This would again ensure that a claimant is not
financially disadvantaged from enforcing their rights under anti-discrimination law.
89
343. The Bill would also insert a note under subsection 46PSA(3) to highlight that section
37N of the FC Act and section 191 of the FCFCA Act also provide for matters to be
taken into account in awarding costs. Section 37N of the FC Act and section 191 of
the FCFCA Act are largely analogous in that they set out that parties to a civil
proceeding, and their lawyers, must act consistently with the overarching purpose of
the civil practice and procedure provisions. The note in subsection 46PSA(3) means
that in exercising discretion to make a costs order, the courts may also take into
account any failure to comply with the overarching purpose.
Subsection 46PSA(4)
344. Subsection 46PSA(4) provides that in the case of a representative application, if the
court makes an order as to costs under subsection (2), the order can only be made
against the representative body and not the individuals on whose behalf the
application is made. This amendment would mean that in making the representative
application, the representative body is accepting the risks associated with pursuing
discrimination complaints in court. No costs order can be made against the persons
on whose behalf the application is made in their individual capacities. This
amendment is appropriate given that the representative body is likely to be better
resourced than individuals to absorb any costs order.
Interactions with the FCFCA Act
Item 5
345. The reference to section 149 of the Family Law Act 1975 (FLA) in the note at the
end of subsection 191(3) of the FCFCA Act would be replaced with section 117 of
the FLA. This amendment is to rectify an error and ensure the court is directed to the
correct cost provision in the FLA.
Items 4, 6
346. Subsection 191(3)(b) provides that the court or Judge may, for the purpose of
enabling a party to comply with the duty imposed by subsection (1), require the
party's lawyer to give the party an estimate of the likely amount of costs that the
party will have to pay in connection with the proceeding. A new note would be
added to the end of this subsection to direct attention to new section 46PSA of the
AHRC Act when making this estimation. The existing note under this subsection
would be amended to become Note 1 as a result of this addition.
Items 7 - 8
347. New subparagraph 214(1)(b)(ia) of the FCFCA Act provides that the court's
jurisdiction to award costs in proceedings does not apply to proceedings brought
under Division 2 of Part IIB of the AHRC Act (redress for unlawful discrimination).
This amendment ensures that the new cost provision in section 46PSA of the AHRC
90
Act applies to unlawful discrimination proceedings in the Federal Circuit and Family
Court of Australia (Division 2).
348. As a result of this amendment, new Note 1A would be inserted below subparagraph
214(1)(b)(i) to direct attention to section 46PSA of the AHRC Act which is the
relevant cost provision for unlawful discrimination proceedings.
Interactions with the FC Act
Item 9
349. Subsection 37N(3)(b) provides that the court or Judge may, for the purpose of
enabling a party to comply with the duty imposed by subsection (1), require the
party's lawyer to give the party an estimate of the likely amount of costs that the
party will have to pay in connection with the proceeding. A new note would be
added to the end of this subsection to direct attention to new section 46PSA of the
AHRC Act when making this estimation.
Item 10
350. New subsection 43(1)(aa) of the FC Act provides that the court's jurisdiction to
award costs in proceedings is subject to section 46PSA of the AHRC Act. This
amendment ensures that section 46PSA of the AHRC Act applies to unlawful
discrimination proceedings in the Federal Court of Australia.
Illustrative examples of section 46PSA
351. Claire works as an apprentice chef at a small family-owned café. Claire believes that
the head chef, Vince, treats her less favourably because of her sex and race by giving
her basic tasks in the kitchen. Claire lodges a complaint against Vince and the
owners of the café in the Commission on the basis that she is experiencing unlawful
discrimination on the basis of sex and race. The matter is not resolved during
conciliation despite the bona fide attempts of both parties. The matter is
subsequently terminated by the Commission and Claire made an application in the
federal courts. The court ultimately dismisses both discrimination claims. The court
then considered whether there are circumstances justifying departing from the
default rule that each party bears their own costs (subsection 46PSA(2)). In this case,
the court considered that the matters set out in subsection 46PSA(3) did not justify
making a costs order so the default rule should stand and each party should bear
their own costs.
352. Abbey worked as customer service assistant at a large supermarket for a number of
months and alleged that her supervisor sexually harassed her on multiple occasions
during this period. Abbey reported the matter to the store manager, but they refused
to take any action. When Abbey said she would make a complaint to the
91
Commission, the store manager reduced her shifts. Abbey subsequently left her
employment and lodged a complaint in the Commission. The respondents refused to
attend a conciliation conference, remarking that 'there was no point engaging with a
liar.' After her complaint was terminated by the Commission, Abbey made an
application to the federal courts. The court found in Abbey's favour and awarded her
$60,000 in general damages. The court then considered whether there was any
circumstances justifying departing from the default rule that each party bears their
own costs (subsection 46PSA(2)). The court considered the fact that the respondent
had significant financial means compared to Abbey who had been unable to secure
regular work since leaving her job 10 months ago (paragraph 46PSA(3)(a)). The
court also considered the respondent's failure to engage in the Commission's
conciliation process which denied Abbey the benefit of resolving the matter through
conciliation (paragraph 46PSA(3)(b)). These factors, combined with the fact that
Abbey was wholly successful in the matter, gave weight to the argument that it
would be unjust for her to have to bear her own legal costs (paragraph 46PSA(3)(c)).
The court concluded that, on balance, these factors justified it making an order of
costs against the respondent (subsection 46PSA(2)).
353. Gael worked as a consultant at large consulting firm. Gael alleged that he had been
denied a promotion because of his sex and lodged a complaint in the Commission. In
the course of conciliation, the respondent offered Gael a without prejudice monetary
settlement of $8,000 which he refused. After the complaint was terminated by the
Commission, Gael made an application in the federal courts. During the course of
proceedings Gael failed to provide adequate particulars and disclosures when
required which led to multiple adjournments and delays. The court subsequently
dismissed Gael's case on the basis that there was a lack of evidence to support a sex
discrimination claim. The court then considered whether there were circumstances
justifying departing from the default rule that each party bears their own costs
(subsection 46PSA(2)). Most relevant to this matter was the respondent's monetary
settlement offered during conciliation which the court noted demonstrated the
respondent's bona fide efforts to resolve the matter (paragraph 46PSA(3)(d)). It also
considered Gael's conduct during proceedings which it described as intentionally
protracting the respondent's costs (paragraph 46PSA(3)(b)). The court concluded
that the interests of justice dictated that a costs order be made against the
complainant pursuant to subsection 46PSA(2).
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Schedule 6 - Amendment of the Workplace Gender Equality Act 2012
Workplace Gender Equality Act 2012
354. The Bill would amend the WGE Act to require Commonwealth public sector
organisations with 100 or more employees to comply with WGEA's public reporting
requirements. These amendments would implement recommendation 43(a) of the
Respect@Work Report, which recommended that the WGE Act be amended to
require public sector organisations to report to WGEA on its gender equality
indicators, for the Commonwealth public sector.
355. The WGE Act already requires private sector businesses with 100 or more
employees across Australia to lodge reports each year containing information on
various gender equality indicators. However, the definition of 'relevant employer' in
the WGE Act specifically excludes Commonwealth, state and territory employers,
which means that public sector data is not currently collected or analysed by WGEA.
356. The Respect@Work Report observed that existing avenues for public reporting on
workplace sexual harassment, including to WGEA, should be expanded to cover
more of the Australian workforce. This would enable more robust data to be
obtained and provide a more accurate and comprehensive understanding of the
situation in Australian workplaces.52
357. These amendments would bring the Commonwealth public sector in line with the
private sector. Like private sector organisations, Commonwealth public sector
agencies would be required to annually report on six gender equality indicators.53
The inclusion of Commonwealth public sector agencies would expand WGEA's
world-leading dataset on gender equality indicators and help build a clearer picture
of gender equality in Australian workplaces.
Items 1 - 5
358. Item 1 would repeal the current definition of 'authority' in subsection 3(1). This
term would no longer be used by the WGE Act because of the expansion of the
definition of 'relevant employer' to include Commonwealth entities and
Commonwealth companies. The meaning of 'authority' as it related to States and
Territories has been inserted into the new definition of 'relevant employer' under
subsection 4(2) by item 6 of this Schedule.
52Respect@Work Report (n 1) 642.
53The six indicators are: 1) gender composition of the workforce; 2) gender composition of governing bodies of relevant
employers; 3) equal remuneration between women and men; 4) availability and utility of employment terms, conditions and
practices relating to flexible working arrangements for employees and to working arrangements supporting employees with
family or caring responsibilities; 5) consultation with employees on issues concerning gender equality in the workplace;
6) any other matters specified by the Minister - sex-based harassment and discrimination.
93
359. Item 2 would insert the definitions 'Commonwealth company' and 'Commonwealth
entity,' as defined in the PGPA Act, in subsection 3(1). Adopting the definitions
under the PGPA Act would create greater consistency of the application of both the
WGE Act and the PGPA Act on Commonwealth entities and Commonwealth
companies.
360. Item 3 would repeal and substitute the definition of 'governing body' in
subsection 3(1) to simplify the definition and better reflect the governance structure
of public bodies.
361. Item 4 would repeal the existing definition of 'relevant employer' in subsection 3(1)
and substitute it for a reference to the new provision setting out the meaning of
'relevant employer' inserted by item 6 of this Schedule.
362. Item 5 would repeal subsections 3(2) and (2A) which are related to the existing
definition of 'relevant employer.' These sections have been incorporated into the
new definition of relevant employer inserted by item 6 of this Schedule.
Item 6
Relevant employer
363. Item 6 would insert a new definition of 'relevant employer' in section 4. Under
paragraphs 4(1)(c) and (d), 'relevant employer' means Commonwealth companies
and Commonwealth entities with 100 or more employees in Australia. A relevant
employer would not include a State or Territory (subsection 4(2)).
364. The definition would only cover Commonwealth companies or Commonwealth
entities with 100 or more employees as this is consistent with the existing
requirements for private sector organisations. Smaller agencies with fewer than 100
employees would have found the annual reporting requirements disproportionately
onerous or impractical.
365. While the Respect@Work Report recommended that all public sector organisations
report to WGEA on its gender equality indicators, the WGE Act will not apply to
states and territories at this time. However, WGEA is working with states and
territories to run a limited pilot program in 202254 which will inform further
development of reporting at the state and territory level.
54 'Reporting', Workplace Gender Equality Agency (Web Page, 2022) .
94
Item 7
366. This item would insert subsection 5(11A) which provides that by virtue of the
subsection, the WGE Act has the effect it would have if each reference in the WGE
Act to a relevant employer were, by express provision, confined to a relevant
employer that is a Commonwealth company or a Commonwealth entity.
Item 8
367. This item would insert section 5B in the WGE Act which clarifies that the WGE Act
binds the Crown in the right of the Commonwealth and does not bind the Crown in a
right of a State, or the Australian Capital Territory or the Northern Territory.
Item 9
368. This item would insert new subsection 13(3A) and (3B). These provisions would
provide that a relevant employer that is a law enforcement agency or security agency
is not required to include in a public report any information that is operationally
sensitive information, or the publication of which could prejudice the security,
defence or international relations of Australia.
369. The provisions refer to the existing definitions of 'law enforcement or security
agency' and 'operationally sensitive information' in section 4 of the Independent
National Security Legislation Monitor Act 2010.
370. This means that national security agencies would be required to report to WGEA,
but they are not obliged to provide WGEA with any information that may pose a risk
to national security.
Item 10
371. This item would repeal and insert a new subsection 13(5) in the WGE Act. For the
purpose of the signing of the public report under subsection 13(5) of the WGE Act,
if the relevant employer is a Commonwealth entity, the accountable authority is to
sign the public report. Otherwise, the public report must be signed by the chief
executive officer of the relevant employer. The new subsection 13(5) clarifies the
sign off requirements of the public report for Commonwealth entities who operate
under the PGPA Act.
Items 11 - 14
372. These items relate to the timing of the lodgement of public reports provided to
WGEA. Commonwealth entities and Commonwealth companies will have a
different reporting period to corporations to align with Australian Public Service
Commission data collection schedules and to better balance the employer reporting
support services provided by WGEA.
95
373. Item 11 would update subsection 13A(2) to require relevant employers who are not
Commonwealth entities or Commonwealth companies to report in respect of the
period of 12 months commencing on 1 April 2000 and after that, in respect of each
consecutive period of 12 months.
374. Item 12 would insert a new subsection 13A(2A) which requires relevant employers
who are a Commonwealth company or a Commonwealth entity to prepare a public
report in respect of the period of 12 months commencing on 1 January 2022 and
after that, in respect of each consecutive period of 12 months.
375. Item 13 would amend section 13B to provide that unless a relevant employer has
received an extension of time, if the relevant employer is a Commonwealth company
or Commonwealth entity, the employer must lodge a public report under section
13A within 2 months after the day determined by WGEA.
376. Item 14 would amend section 17 which now provides that before the end of the
relevant period (instead of before the end of 2 months), a relevant employer may
lodge with WGEA a public report under section 13B, or apply to WGEA to extend
the period for a further period to enable the employer to lodge the public report.
Item 15
377. This item would update subsection 19(1) of the WGE Act to remove a date reference
to the Minister setting minimum standards in relation to specified gender equality
indicators before 1 April 2014.
96
Schedule 7 - Victimisation
Part 1 - Amendments
378. Schedule 7 of the Bill contains amendments to the AD, AHRC, DD and RD Acts to
clarify that victimising conduct can form the basis of a civil action for unlawful
discrimination in addition to a criminal complaint.
379. These amendments mirror the amendment to the SD Act made by the Respect at
Work Act 2021. That amendment sought to address judicial uncertainty as to
whether the federal courts had jurisdiction to hear an application of unlawful
discrimination under the AHRC Act, where the alleged unlawful discrimination is an
act of victimisation brought as a civil action. That judicial uncertainty was not
limited to the SD Act,55 and so the Bill would address this uncertainty by similarly
amending the other three Commonwealth anti-discrimination Acts. As a result of the
amendments, it would be clear that victimising conduct can be addressed as either a
criminal offence, or as a civil claim of unlawful discrimination.
380. The ability of the Commission to inquire into, and attempt to conciliate, complaints
of 'unlawful discrimination' arises under paragraph 11(1)(aa) of the AHRC Act. The
ability for individuals to lodge a complaint of 'unlawful discrimination' with the
Commission arises under section 46P of the AHRC Act. Subsequently, the ability
for individuals to initiate civil proceedings under the AD, DD, RD and SD Acts
arises through the operation of section 46PO of the AHRC Act. This provision
enables a person to initiate civil proceedings to address 'unlawful discrimination' in
the federal courts if their complaint is terminated by the President of the
Commission. The purpose of this mechanism is to require complainants to attempt to
resolve issues through the Commission's conciliation process as a first step, before
proceeding to the federal courts. If this is unsuccessful and the President terminates
the complaint, a complainant is able to initiate civil proceedings to address the
alleged conduct.
381. Prior to 2011, the case law held that victimisation provisions in the
anti-discrimination legislation, such as subsection 94(1) of the SD Act, could give
rise to civil or criminal proceedings, or both. This was because the definition of
'unlawful discrimination' used in section 46PO of the AHRC Act specifically
captured the provisions relating to victimising conduct.
382. However, as the Respect@Work Report highlighted, there have been three cases
since 2011 that questioned whether the federal courts have jurisdiction to hear a civil
application of 'unlawful discrimination' under the AHRC Act that relates to
55 Australian Human Rights Commission, Federal Discrimination Law (LexisNexis, 2016) 157-161.
97
victimisation.56 This legal uncertainty has arisen predominantly because these
provisions are set out as a criminal offence with criminal penalties.
383. The amendments in Schedule 7 of the Bill would insert new civil victimisation
provisions into the AD, DD and RD Acts and make consequential amendments to
the definition of 'unlawful discrimination' in the AHRC Act. They would ensure
that people who experience victimising conduct are able to make a complaint to the
Commission and, if their complaint is terminated, initiate civil proceedings in
relation to 'unlawful discrimination' under section 46PO of the AHRC Act.
Age Discrimination Act 2004
Item 1
384. This item would amend the simplified outline of the AD Act (existing section 4) to
add a reference to the operation of the new victimisation provision (new section
47A, inserted by item 4). The new provision provides that victimisation is unlawful
on a civil basis.
Item 2
385. This item would amend the heading of Part 4 of the AD Act to reflect that it will
now contain provisions that relate to matters other than prohibited discrimination. In
particular, it will now contain a provision clarifying that victimisation is unlawful on
a civil basis: new Division 6 of Part 4 and new section 47A would be inserted by
item 4 to give effect to this.
Item 3
386. This item would amend the simplified outline of Part 4 of the AD Act (existing
section 17) to add a reference to the operation of the new victimisation provision
(new section 47A, inserted by item 4). The new provision provides that victimisation
is unlawful on a civil basis.
Items 4 - 6
387. Item 4 would create a new provision (section 47A 'Victimisation') in a new
standalone division (Division 6 - 'Victimisation') in Part 4 of the AD Act. New
section 47A makes it unlawful for a person to engage in victimising conduct.
Victimising conduct in this context refers to threatening or subjecting another person
to detriment on the ground that they have acted to address conduct that is unlawful
under the AD Act before the Commission, such as making a complaint or appearing
as a witness.
56 Ibid 157 - 161.
98
388. Victimising conduct is already prohibited under subsection 51(1) of the AD Act.
However, as the Respect@Work Report highlighted, there is some legal uncertainty
as to whether provisions of this nature could form the basis of civil or criminal
proceedings, or both.57 While the Respect at Work Act 2021 addressed this
uncertainty in relation to the SD Act, it did not do so for the other Commonwealth
anti-discrimination Acts. This amendment to the AD Act would be part of resolving
this uncertainty consistently and comprehensively across all the Acts.
389. New section 47A largely mirrors existing section 51, but subsection 47A(1) makes it
clear that victimising conduct is unlawful and can therefore form the basis of a civil
action. Subsection 47A(2) provides what it means to commit an act of victimisation.
390. Note 1 below subsection 47A(1) has been inserted to ensure users of the AD Act are
made aware of the mirrored civil and criminal provisions, noting sections 47A and
51 operate slightly differently and are in different locations in the AD Act. The
criminal provision in section 51 remains as a separate mechanism for the AFP to
address particularly egregious forms of victimisation conduct. Note 2 has been
inserted to draw attention to the meaning of 'unlawful discrimination' in the AHRC
Act, which would include new section 47A given it is in Part 4 of the AD Act (see
paragraph (aa) of the definition of 'unlawful discrimination' in subsection 3(1) of the
AHRC Act). This makes clear that someone can make a complaint of 'unlawful
discrimination' on the basis that they have been the subject of victimising conduct
under the AHRC Act (under section 46P of the AHRC Act). Further, if their
complaint is terminated, they can initiate civil proceedings against the alleged
perpetrator under section 46PO of the AHRC Act. Note 2 below subsection 47A(1)
refers to the definition of 'unlawful discrimination' in the AHRC Act to make this
operation clear.
391. Item 5 would make a consequential amendment to existing section 49 of the AD
Act. Section 49 provides that except as expressly provided by Part 5 ('Offences'),
nothing in the AD Act makes it an offence to do an act that is made unlawful by
certain provisions in Part 4 'Unlawful age discrimination etc.'). This section clarifies
that the prohibited discrimination in Part 4 does not amount to a criminal offence
unless otherwise provided for in Part 5, which contains a range of offences. Item 5
would amend section 49 to reflect that the whole of Part 4, as amended to include
new section 47A, does not make it an offence to engage in the acts made unlawful in
that Part, except where expressly provided by Part 5 (for example, section 51 in
Part 5 provides that victimisation can amount to an offence).
392. Item 6 would repeal the notes at the end of existing subsections 51(1) and (2), which
direct users of the Bill to the definition of 'unlawful discrimination' in the AHRC
Act. These notes would be repealed because it is no longer necessary for section 51
57 Respect@Work Report (n 1) 489 - 490.
99
to form the basis of a civil action under the AHRC Act, as new section 47A
performs that role. New section 47A is included in the definition of 'unlawful
discrimination' in the AHRC Act, and has a note clarifying this interaction.
Australian Human Rights Commission Act 1986
Items 7 - 10
393. These items would amend the definition of 'unlawful discrimination' in
subsection 3(1) of the AHRC Act (where necessary) to remove references to existing
criminal offences relating to victimisation in the AD, DD and RD Acts. The
definition would also be amended (where necessary) to cover the new civil
victimisation provisions created by this Bill. These clarifying amendments are not
intended to impact the Commission's jurisdiction in relation to unlawful
discrimination.
394. Item 7 would amend paragraph (a) to exclude Division 4 of the DD Act, which
contains offences provided for by that Act, and include Division 6 (containing the
new civil victimisation provision in section 58A).
395. Item 8 would amend paragraph (ca) to specifically exclude a reference to section 51
of the AD Act, which is the offence provision relating to victimisation. New section
47A of the AD Act would be captured in existing paragraph (aa).
396. Item 9 would amend paragraph (d) to exclude section 42 of the DD Act, which is the
criminal offence relating to victimisation. New section 58A of the DD Act created
by this Bill would be captured in paragraph (a) (as amended by item 7).
397. Item 10 would repeal paragraph (e), which is a reference to subsection 27(2) of the
RD Act, because this would no longer be necessary. New section 18AA of the RD
Act created by this Bill would be captured in paragraph (b).
Disability Discrimination Act 1992
Item 11
398. This item would amend the heading of Part 2 of the DD Act to reflect that it will
now contain provisions that relate to matters other than prohibited discrimination. In
particular, it will now contain a provision clarifying that victimisation is unlawful on
a civil basis: new Division 6 of Part 2 and new section 58A would be inserted by
item 12 to give effect to this.
100
Item 12
399. This item would insert new section 58A into the DD Act, making it unlawful for a
person to engage in victimising conduct. Victimising conduct in this context refers
to threatening or subjecting another person to detriment on the ground that they have
acted to address conduct that is unlawful under the DD Act before the Commission,
such as making a complaint or appearing as a witness.
400. Victimising conduct is already prohibited under subsection 42(1) of the DD Act.
However, as the Respect@Work Report highlighted, there is currently legal
uncertainty as to whether provisions of this nature could form the basis of civil
proceedings, in addition to criminal proceedings.
401. To clarify that victimisation conduct is unlawful and can form the basis of a civil
proceeding, this item would create a new provision (section 58A 'Victimisation') in
a new standalone division (Division 6 - 'Victimisation') in Part 2 of the DD Act.
402. New subsection 58A(1) largely mirrors existing section 42 (providing for a criminal
offence of victimisation), but subsection 58A(1) makes it clear that victimising
conduct is unlawful and can therefore form the basis of a civil action. New
subsection 58A(1) makes it unlawful for a person to commit an act of victimisation
against another person, while new subsection 58A(2) sets out the meaning of
victimisation.
403. Note 1 below subsection 58A(1) has been inserted to ensure users of the DD Act are
made aware of the mirrored civil and criminal provisions, noting sections 58A and
42 operate slightly differently and are in different locations in the DD Act. The
criminal provision in section 42 remains a separate mechanism for the AFP to
address particularly egregious forms of victimisation.
404. The creation of new section 58A, alongside the amendments to the definition of
'unlawful discrimination' in the AHRC Act, would clarify that people who
experience victimising conduct can make a complaint to the Commission and, if
their complaint is terminated, initiate civil proceedings against the alleged
perpetrator under section 46PO of the AHRC Act. Note 2 below subsection 58A(1)
refers to the definition of 'unlawful discrimination' in the AHRC Act to make this
operation clear.
Item 13
405. This item would amend existing section 122 of the DD Act to add a reference to
Division 6 of Part 2. Section 122 provides for the ancillary liability of persons who
cause, instruct, induce, aid or permit others to do an act that is unlawful under
certain parts of the DD Act. Section 122 provides that they will also be taken to have
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done the act. By adding a reference to Division 6, section 122 would provide for the
ancillary liability of those who cause, instruct, induce, aid or permit others to engage
in victimising conduct. This amendment to ancillary liability is only necessary in the
context of the DD and SD Acts, as the AD and RD Acts are structured in a different
way.
Racial Discrimination Act 1975
Item 14
406. This item would amend the heading of Part II of the RD Act to reflect that it will
now contain provisions that relate to matters other than prohibited discrimination. In
particular, it will now contain a provision clarifying that victimisation is unlawful on
a civil basis: new section 18AA would be inserted by item 15 to give effect to this.
Item 15
407. This item would create a new section 18AA in Part 2 of the RD Act that makes it
unlawful for a person to commit an act of victimisation against another person.
408. Victimising conduct is already prohibited under subsection 27(2) of the RD Act.
However, as the Respect@Work Report highlighted, there is currently legal
uncertainty as to whether provisions of this nature could form the basis of civil
proceedings, in addition to criminal proceedings.
409. To remedy this legal uncertainty, this item would create a new provision
(section 18AA 'Victimisation') in the RD Act. This new provision largely mirrors
existing subsection 27(2), but makes it clear that victimising conduct is unlawful.
Together with the amendments made to the definition of 'unlawful discrimination'
in the AHRC Act by this Bill, this amendment would clarify that people who
experience victimisation can make a complaint to the Commission and, if their
complaint is terminated, initiate civil proceedings against the alleged perpetrator
under section 46PO of the AHRC Act.
410. Note 1 would be inserted to ensure users of the RD Act are made aware of the
mirrored civil and criminal provisions, and their separate locations in the Act. This
Bill would not impact the criminal offence provision which may be used by the AFP
to address particularly egregious forms of victimisation conduct.
Sex Discrimination Act 1984
Item 16
411. This item would amend existing section 105 of the SD Act to add a reference to
Division 5 of Part 2. Section 105 provides for the ancillary liability of persons who
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cause, instruct, induce, aid or permit others to do an act that is unlawful under
certain parts of the SD Act. Section 105 provides that they will also be taken to have
done the act. By adding a reference to Division 5, section 105 would provide for the
ancillary liability of those who cause, instruct, induce, aid or permit others to engage
in victimising conduct. This amendment to ancillary liability is only necessary in the
context of the DD and SD Acts, as the AD and RD Acts are structured in a different
way such that their ancillary liability provisions already apply to victimising
conduct.
Part 2 - Application and transitional provisions
Items 17 and 18
412. These items would provide for the application and transitional arrangements
applicable to the new victimisation provisions in the AD, DD and RD Acts (new
sections 47A, 58A and 18AA respectively), which would be inserted by this Bill.
413. It is necessary to provide for these arrangements so that the inclusion of these new
victimisation provisions does not have unintended consequences for complainants
who are part way through a complaints process involving a complaint of
victimisation when the Bill takes effect, or are yet to make a complaint of
victimisation based on conduct engaged in prior to the Bill taking effect.
414. Item 17 would provide for the application of new subsections 47A(1) of the AD Act,
58A(1) of the DD Act and 18AA(1) of the RD Act to victimising conduct that has
occurred prior to the commencement of this Bill. It provides that for the purposes of
these subsections, it is immaterial whether the act of victimisation was committed
before, at or after the commencement of this item and for acts of victimisation
committed before commencement, the subsections are modified to include the
phrase ', and is taken to have been unlawful,'. As such, each new subsection would
read, in relation to acts of victimisation that occurred before the commencement of
the Bill: 'It is unlawful, and is taken to have been unlawful, for a person to commit
an act of victimisation against another person.'
415. As the existing victimisation provisions in all the Commonwealth
anti-discrimination Acts were always intended to provide the basis of civil
victimisation claims - through the operation of the definition of 'unlawful
discrimination' in the AHRC Act - the new civil victimisation provisions would be
retrospective in operation. The effect of item 17 would be to give subsections
47A(1) of the AD Act, 58A(1) of the DD Act and 18AA(1) of the RD Act
retrospective application to acts of victimisation that occurred prior to the
commencement of this Bill and ensure this subsection operates effectively to cover
those pre-commencement acts of victimisation. This will ensure that a complainant
seeking to make a complaint about victimising conduct that occurred prior to
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commencement is not precluded from using the new subsection and not
disadvantaged compared to complainants seeking to make a complaint about
conduct engaged in after commencement. It is appropriate for this provision to apply
in relation to conduct that has already occurred given it is confirming the existing
civil jurisdiction of section 51 of the AD Act, section 42 of the DD Act and
subsection 27(2) of the RD Act and not introducing a new form of liability.
416. Item 18 would provide for the transitional arrangements for victimisation
complaints:
• that are before the Commission at the time this Bill commences
• that are yet to be made to the Commission, concerning conduct that occurred
prior to commencement
• that have been terminated by the Commission prior to commencement and
are either before a court or yet to proceed to court.
417. Subsection (1) of item 18 provides that despite the amendments this Bill would
make to the definition of 'unlawful discrimination' in the AHRC Act, paragraphs
(ca), (d) and (e) of that definition (which include the existing victimisation
provisions in each of the AD, DD and RD Acts) would continue to have effect in
relation to victimising conduct engaged in prior to commencement of this Bill, as if
it were not amended.
418. The effect of subsection (1) of item 18 would be to preserve the existing meaning of
'unlawful discrimination' in the AHRC Act for the purposes of complaints
concerning victimising conduct engaged in prior to commencement of this Bill. This
will enable the Commission to continue to handle a victimisation complaint as if it
relates to conduct that is unlawful under existing section 51 of the AD Act, section
42 of the DD Act and subsection 27(2) of the RD Act (unless the President decides
to deal with it as a complaint of victimisation that relates to the new victimisation
provisions in each of those Acts, introduced by this Bill), or enable the complainant
to proceed to the federal courts with the complaint.
419. Subsection (2) of item 18 provides that following the commencement of item 18, a
person will no longer be able to lodge a complaint of victimisation with the
Commission as if it relates to conduct that is unlawful under existing section 51 of
the AD Act, section 42 of the DD Act and subsection 27(2) of the RD Act that deal
with victimisation. These victimisation complaints should instead be made in
relation to the new provisions introduced by this Bill (section 47A of the AD Act,
58A of the DD Act and 18AA of the RD Act) to deal with victimisation as a civil
cause of action.
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420. Subsections (3)-(5) of item 18 provides the President of the Commission with the
discretion to deal with complaints of victimisation lodged with the Commission
prior to the commencement of this Bill (as if they relate to conduct that is unlawful
under the existing provisions dealing with victimisation), that have not yet been
terminated, as if they were complaints lodged in relation to conduct that is unlawful
under the new provisions dealing with victimisation as a civil cause of action.
421. In particular, paragraph (c) of subsections (3)-(5) provides that the President may
declare in writing that the complaint will be so treated, and if they do so,
subparagraph (d)(ii) requires them to give a copy of the declaration to the person
who made the complaint. The President may also amend the complaint to give effect
to the declaration (subparagraph (d)(i)), and if they do so, they must give a copy of
the amended complaint to the person who made the complaint (paragraph (e)).
422. Subsection (6) of item 18 provides that declarations under subsections (3)-(5) are not
legislative instruments. The effect of this provision is to clarify that declarations of
the President will not be legislative instruments for the purposes of the Legislation
Act 2003. The declarations are administrative in nature, as they provide for the
application of the AHRC, AD, DD and RD Acts to particular complaints and their
contents on a case-by-case basis.
423. Subsection (7) of item 18 ensures that actions under this item may be delegated, in
accordance with subsections 19(2), (2A) and (2C) of the AHRC Act. This item will
therefore operate with regards to delegation as if it were a provision of Part IIB of
the AHRC Act.
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Schedule 8 - Other amendments
Australian Human Rights Commission Act 1986
Item 1
Timeframe for making complaints
424. This item would amend subsection 46PH(1) of the AHRC Act, which sets out the
discretionary grounds on which a complaint may be terminated by the President of
the Commission. Under this provision, the President may consider, on a
discretionary basis, a range of factors when determining whether a complaint should
be terminated. These factors include the period of time between the alleged
incident(s) and the person lodging a complaint, as well as the reasons for any delay
between the incident(s) and lodgement of a complaint.
425. This amendment would extend the period of time in paragraph 46PH(1)(b) from six
months to 24 months for complaints initiated in relation to all the Commonwealth
anti-discrimination Acts: the AD, DD, RD and SD Acts. The Respect at Work Act
2021 extended this time period to 24 months for complaints relating to the SD Act
only. In recognition of the fact that it can be challenging for all persons subjected to
unlawful discrimination to lodge a complaint within six months of the conduct
occurring, the time period would be extended in relation to all the Acts. Further, it
can be challenging for the Commission to manage an intersectional complaint (one
that raises complaints on the grounds of multiple protected attributes, under multiple
Acts) when different time periods apply (albeit on a discretionary basis) to the
different components of the complaint.
426. Importantly, this remains a discretionary consideration - that is, the President is not
required to terminate a complaint if it concerns alleged acts, omissions or practices
that occurred more than 24 months before the complaint was lodged. The President
may still decide to accept such complaints.
Sex Discrimination Act 1984
Item 2
Object clause
427. This Bill would replace the object clause at paragraph 3(e) of the SD Act, which
stated that an object of the Act is to 'achieve equality of opportunity between men
and women'.
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428. Paragraph 3(e) would be amended to state that an object of the SD Act is to 'achieve
substantive equality between men and women'. This amendment would implement
recommendation 16(a) of the Respect@Work Report.
429. The SD Act already recognises the concept of 'substantive equality' when providing
for 'special measures' under section 7D. The rationale of the special measures
mechanism is that it is often necessary for differences and disadvantages between
people to be considered to ensure equality of outcomes. Therefore, substantive
equality is not a new concept for the SD Act.
430. The Respect@Work Report found that gender inequality is a key driver of
workplace sexual harassment.58 This amendment would also help ensure that the
SD Act is underpinned by a comprehensive understanding of equality and assist in
clarifying its underlying purposes and foundational principles. The objects clause of
an Act also has practical legal relevance because, to the extent that the provisions of
the Act are ambiguous, they will be interpreted by the courts in a way that is
consistent with its objects.
Item 3
Sex-based harassment
431. This item would amend subsection 28AA(1) of the SD Act to remove the term
'seriously' from the definition of harassment on the ground of sex. This would
ensure that the provision does not impose an unnecessarily high threshold on
complainants and would complete the implementation of the intent of
recommendation 16(b).
432. The Respect at Work Act 2021 introduced section 28AA in the SD Act to prohibit
harassment on the ground of sex. Section 28AA(1) currently prohibits sex-based
harassment where a person engages in unwelcome conduct of a seriously demeaning
nature in relation to a person harassed because of their sex, or a characteristic that
applies to, or is generally associated with, people of that sex.
433. The use of the term 'seriously' in this provision has set an overly high threshold for
a finding of sex-based harassment to be made, in comparison with sexual
harassment.59 This amendment would ensure that sex-based harassment is not
subject to a higher threshold than section 28A (sexual harassment), which requires
conduct to be 'of a sexual nature' and does not set any further qualifiers.
58 Respect@Work (n 1) 18.
59 See submissions to Respect@Work Report (n 1).
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