Overview

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) is minimalist in its ambitions and achievements: indeed, many of its provisions are described by the government in its Explanatory Memorandum as merely clarifying existing provisions of the relevant legislation (paras 14, 18, 19, 21, 24 and 184).

The Explanatory Memorandum states that the government’s Roadmap for Respect, including the proposed legislative measures, will provide ‘a clear and comprehensive path forward to prevent and address workplace sexual harassment’ (para. 3). In fact, the legislative package is far from comprehensive and rejects any preventative measure. The government has declined to act on Respect@Work recommendations 15, 17, 18, 19, 23, 25, 26, 28, 35 and 39, in some cases by ignoring them and in others by calling for further consideration at some unspecified future time.

While it is claimed in the Explanatory Memorandum that this package gives effect to recommendations 16, 20, 21, 22, 29, and 30 (para. 3), in fact the critical preventative measures in recommendations 16 (a and c) are simply omitted.

While NFAW welcomes all but one of the proposed amendments that have survived the neutering process of the government’s Roadmap for Respect, it notes that:

• the remaining measures amend the existing reactive, complaints-based model and omit, indefinitely defer or reject any legislative support for pro-active and preventative measures
• as a consequence the government’s response continues to throw legislative responsibility for addressing sexual harassment back onto its victims
• clarifying some aspects of the sexual harassment regime is a minimalist response to the needs of victims, who are vulnerable to victimisation dismissal, reputational damage, loss of future employment and considerable legal costs if they are left by government to carry legal responsibility for responding to harassment across Australian workplaces (790)
• educational packages alone cannot leverage legislative and system change. Given past experience with such packages in the discrimination jurisdiction associated with many of the nine reviews of the operation of the SD Act, it is disingenuous to argue or imply that they can.

 

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