Legislation update

On 30 September 2022, we reported on the details of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) which proposed to amend the Sex Discrimination Act 1984 (Cth) (SD Act) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) by implementing seven of the 55 recommendations from the Australian Human Rights Commission’s (AHRC) Respect@Work Report (see related article).  

The Bill was passed by Federal Parliament on 28 November 2022 (the Act) with two significant changes to the original, namely:

• the contentious 'cost neutrality' provisions, which provided that each party in an unlawful discrimination proceeding would bear their own costs, have been abandoned; and
• a new provision has been inserted which clarifies that the new positive duty of employers to proactively take reasonable, proportionate measures to prevent sexual harassment, sex discrimination and victimisation (discussed below) does not limit, or otherwise affect, a duty that a duty holder has under the Work Health and Safety Act 2011 (Cth) or an equivalent state or territory Act.

In this article, Partner Andrew Tobin, Special Counsel Adele Garnett and Associate John Hickey outline the changes following the Act and how the shift in the existing legislative framework from reactive to preventative measures requires employers to do more to eliminate unlawful discriminatory conduct. 

What does the passing of the Act mean for employers?

Positive duty to eliminate unlawful sex discrimination

Significantly, the Act amends the SD Act to introduce a positive duty on all employers to “take reasonable and proportionate measures” to eliminate, as far as possible, specified forms of unlawful sex discrimination including:

• discrimination on the ground of a person’s sex;
• sexual harassment, or harassment on the ground of sex;
• subjecting a person to a hostile workplace environment (discussed below); and
• acts of victimisation in response to allegations, assertions, complaints, or proceedings in relation to any of the above conduct.

This change shifts the focus of employers from responding to discrimination and harassment that has already occurred to proactively preventing discrimination and harassment in workplaces to achieve compliance with the SD Act.  

The Explanatory Memorandum states that the positive duty is intended to align with section 106 of the SD Act, which relates to the default vicarious liability of employers and principals for unlawful acts done by their employees or agents, unless they can show that they have taken “all reasonable steps” to prevent the conduct. However, it remains to be seen how the courts will interpret this in practice since the sections do not actually cross-refer to each other and the language is not the same (“reasonable and proportionate measures to eliminate” compared to “reasonable steps to prevent”).  

Similar provisions are now appearing in state and territory based anti-discrimination legislation.

As noted earlier, this positive duty operates concurrently with the existing duties under work, health and safety laws at a federal, state and territory level, which require employers to provide a safe working environment for workers, so far as is reasonably practicable. It follows that all Australian employers must take positive steps to prevent discrimination and harassment in their workplaces, and treat it as a health and safety issue which needs to be risk assessed with strategies implemented which focus on prevention.

Enforcement of the positive duty

The Act also provides extended powers to the AHRC to monitor and assess compliance of employers with the new positive duty inserted into the SD Act.

The AHRC’s extended powers include:

• conducting inquiries into compliance if it reasonably suspects that an employer is not complying with their positive duty;
• making recommendations to employers to achieve compliance with their positive duty;
• giving compliance notices specifying actions that must be taken by employers to address their non-compliance;
• applying to the Federal Courts for an order to direct compliance with a compliance notice; and
• taking enforceable undertakings from employers.

Should an employer fail to comply with an order of the Court which directs them to comply with the AHRC’s compliance notice, the Court has the power to punish them for being in contempt of court. This power is a broad one and includes the power to fine or imprison.

The AHRC’s extended powers will not come into force until 12 months after the Act receives royal assent. This delay provides employers sufficient time to understand their obligations under the positive duty and implement changes, if necessary.

Subjecting a person to a hostile workplace environment on the ground of sex

The Act implements 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.  

Although the SD Act already captures unlawful conduct directed at a person that may result in a hostile workplace environment, this amendment extends the law such that conduct does not need to be directed at a specific person, it just needs to be offensive, intimidating or humiliating to a person because of their sex or a characteristic that appertains to or is imputed to a person of that sex. 

Examples of conduct which may be considered “offensive, intimidating or humiliating” include:

• displaying sexually obscene or pornographic materials;
• general sexual banter, or innuendo; and 
• offensive jokes resulting in people of one sex feeling unwelcome or excluded by the general environment.

The duty to eliminate “hostile work environments” also requires employers to prevent offensive conduct within their workplaces perpetrated by external influences (e.g., by members of the public or suppliers).

The circumstances to be considered when determining whether conduct is unlawful includes:

• 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.

This aligns with other provisions in the SD Act by using existing terms and concepts, such as “offensive, intimidating or humiliating” and the reasonable person test applicable to the determination of whether particular conduct is objectively offensive. 

Inquiries into systemic unlawful discrimination

The Act inserts a new provision in the AHRC Act to provide the AHRC with a broad inquiry function (broader than it currently has) to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination, on its own motion.

Once the AHRC has inquired into a matter, the AHRC may report to the Minister (currently the Hon Mark Dreyfus KC) in relation to the inquiry or/and publish a report in relation to the inquiry and if appropriate, make recommendations to address the issues identified. Unless taken further by a complainant, any report will not result in prosecution in the courts.

Other amendments

The Act also:

• clarifies (considering previous judicial uncertainty) that victimising conduct can form the basis of both a civil action for unlawful discrimination in addition to a criminal complaint under the Anti-Discrimination Act 1991 (Cth) (AD Act), Disability Discrimination Act 1992 (Cth) (DD Act) and the Racial Discrimination Act 1975 (Cth) (RD Act);
• extends the timeframe for making complaints under the AD Act, the DD Act and the RD Act from six months to 24 months after the alleged unlawful conduct took place and amends the discretionary grounds on which a complaint made under those Act may be terminated by the President of the AHRC. This corresponds with a change made to the SD Act in 2021.
• amends the AHRC Act to enable representative bodies (such as a union representing one or more workers) to make representative applications to the Federal Court on behalf of people who have experienced unlawful discrimination, rather than to simply initiate complaints in the AHRC; and
• amends the SD Act to include that one of its objectives is to “achieve substantive equality between men and women”.

Key takeaways

All of these laws, other than the compliance power of the AHRC, commence the day after royal assent (expected to be shortly). It has also been reported that the Federal Governments’ Fair Work Act 2009 amendments will be passed shortly, which will further change complaint mechanisms for sexual harassment – we will update on those changes shortly.

The shift in the existing legislative framework from reactive measures to preventative measures to eliminate, as far as possible, unlawful discriminatory conduct requires employers to do more than just implement another standard workplace policy and basic training (although these are an important starting point).  

It requires a whole-of-business strategy, involving the board and senior management, which doesn’t just address obvious surface level issues, but also addresses underlying cultural and policy matters which affect women in the workplace, and demonstrate the importance of workplace equality. 

The reporting of workplace sexual harassment remains alarmingly low at only 18% according to a very recent report,  so it also requires reviewing the complaint management system to ensure it is easy for employees to report concerns, and there is a system in place to manage and investigate complaints.  One way to assist in this is to provide a complaint hotline or whistleblower reporting service, such as the service HopgoodGanim Lawyers provides (further details here) which confidentially and anonymously takes complaints from employees and other stakeholders.

To hear more about the recent changes to the legal framework applicable to sexual harassment in Australia and the increasing tendency of Australian courts and tribunals to award and uphold significant sums of damages in such cases, please view our webinar: Confronting workplace sexual harassment head-on: A brave new world.

If you require any further information or assistance with reviewing existing sexual harassment policies and processes to ensure that your business is legally compliant, please contact our Workplace and Employment team at HopgoodGanim Lawyers.