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Government at risk of missing an opportunity with key sexual harassment changes: Sex Discrimination Commissioner
By Katina Curtis
Sex Discrimination Commissioner Kate Jenkins says the federal government is at risk of missing an opportunity to overhaul key laws in its response to her landmark Respect@Work report, after it said it wouldn’t fully adopt all the legislative changes.
Prime Minister Scott Morrison and Attorney-General Michaelia Cash released the long-awaited response to the Respect@Work report on Thursday, saying they agreed or noted all 55 recommendations. The report was released publicly in March last year.
Attorney-General Michaelia Cash and Prime Minister Scott Morrison have released the government’s long-awaited response to a report on ending workplace sexual harassment.Credit: Alex Ellinghausen
While Ms Jenkins welcomed the government’s acceptance of all her recommendations in full or in-principle, she said it was a “missed opportunity” to shift from a complaints-based system that puts a heavy burden on victims to one where employers must proactively stamp out sexual harassment and create safe workplaces.
Of the 15 legislative changes Ms Jenkins recommended, the government has agreed to do just seven of the reforms in full, stopping short of key changes to the Sex Discrimination Act where the government has the power to act.
The government supports the express prohibition of sexual harassment and will expand the scope of the Sex Discrimination Act to cover politicians, judges and state public servants.
It will also change the Fair Work Act to include sexual harassment as “serious misconduct” and clarify that it is a valid reason for sacking someone. This new reason for dismissal has been enthusiastically welcomed by employer groups.
Senator Cash said the positive duty for employers already existed under work health and safety laws.
“We want consistency and we want to reduce complexity. So we’re going to now look at how you could implement that in the Sex Discrimination Act, but not make the system more complex and not confuse people as to where to go,” she said.
Ms Jenkins was not convinced.
“It will be a missed opportunity to not introduce a positive duty to take reasonable and proportionate measures to eliminate sexual harassment in the Sex Discrimination Act,” she said. “I am happy to assist government with the evidence provided to the national inquiry as they further assess this recommendation.”
The Respect@Work report notes the WHS regime is usually more focused on physical harm than psychological harm and the Human Rights Commission already has the expertise to deal with sexual harassment complaints. It says the two positive duties would be complementary and “work in a mutually reinforcing way”.
University of Sydney workplace culture expert Catharine Lumby said Ms Jenkins wouldn’t have recommended the change if the existing regime was working.
“There might be health and safety laws, but they’re not working because we know that the rates of sexual harassment and even sexual assault in the workplace are outrageous,” she said.
“This goes to the heart of Kate Jenkins’ report, we need to bolster those laws and we need to take the onus off women to do the reporting.
“If that sort of thing is being watered down, then I think it is outrageous and that very clearly, our politicians still have not got what women marched about.”
Prime Minister Scott Morrison speaks with Sex Discrimination Commissioner Kate Jenkins.Credit: Alex Ellinghausen
Nor did the government accept the need to introduce a “stop sexual harassment order”. Instead, it has opted to clarify that existing “stop bullying orders” are available in the context of sexual harassment.
The government is aiming to include significant funding in May’s budget and put legislation to Parliament by the end of June. It will also boost educational resources, data gathering and research to complement the legal changes.
Mr Morrison was also open to an advertising campaign similar to the Stop It At The Start ads aimed at reducing domestic violence.
“It all starts with disrespect,” he said. “We’ve got to be careful in our society that we don’t allow the reservoir of respect to drain and I fear it is.”
He wants bipartisan support for the legislative changes.
Opposition frontbencher Kristina Keneally said the announcement was a good first step but contained little detail.
“It doesn’t have any funding, it doesn’t have any legislation, it doesn’t have a reporting mechanism,” she said.
Independent MP Zali Steggall called on the government to adopt a bill she already has before Parliament, drafted in consultation with Ms Jenkins and the Law Council, which removes the exemptions for MPs and judges, creates a general prohibition on sexual harassment and bans “aiding and abetting” it. Ms Steggall says this last change would effectively create a positive duty on employers.
“This is not something that’s left-field or controversial, this has come from sound legal submissions of what amendment needs to happen,” she said, adding that after waiting for more than a year for the Respect@Work response the government shouldn’t delay further.
The Greens also have a bill ready to go to make the recommended changes.
Business groups said it was vital employers be given the powers to sack sexual harassers but cautioned against adding further complexity to anti-discrimination laws.
Australian Chamber of Commerce and Industry acting chief executive Jenny Lambert cautioned that adding overlapping and complex legal recourses “risks detracting from, rather than advancing, prevention of sexual harassment”. Australian Industry Group head Innes Willox said some proposals could put employers at risk of having multiple penalties or payouts imposed for the same instances of harassment.