New laws being introduced to federal parliament will put the responsibility squarely on employers to ensure proactive measures are taken to prevent sexual discrimination and harassment in the workplace.

The proposed laws

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 seeks to implement seven of the 55 recommendations of Sex Discrimination Commissioner Kate Jenkins’ 2020 National Inquiry into Sexual Harassment in the Workplace (2020) Report, known more commonly as the [email protected] report.

Legal liability of employers

The changes include expressly banning hostile conduct on the basis of sex, taking “reasonable and proportionate” measures to eliminate these behaviours and requiring the public sector to report on its performance on gender equality.

Enforcement

The Australian Human Rights Commission (AHRC) will be empowered to monitor, assess and enforce compliance, including the power to issue compliance and enforcement notices to employers that fail to meet their legal responsibilities under, or face hefty fines.

Commonwealth public sector organisations will be required to report to the Workplace Gender Equality Agency on gender equality indicators, or face legal consequences.

The proposal is expected to have bilateral support in parliament.

‘Positive duty’

The Morrison Government – which facilitated the [email protected] review in the wake of numerous incidents of sexual harassment, bullying and toxic workplace culture – had initially agreed to implement many of the report’s recommendations.

But it stopped short of imposing a positive duty on employers, on the basis that this already existed in workplace health and safety laws.

Those critical of the former government asserted that this was not in fact the case, and that Victoria is the only state that has laws which make any such ‘positive duty’ legally enforceable.

Economically sound policy

In adopting the recommendation, the current government relied of research as well as statistics which suggest that sexual harassment and discrimination are rife in workplaces across Australia, costing $3.8 billion a year in lost productivity, staff turnover and absenteeism.

Australian data suggests that one in three people experienced workplace sexual harassment over the past five years, with women experiencing higher rates than men. Aboriginal and Torres Strait Islander people, people with a disability and members of the LGBTQ+ community are also, on average, more likely to experience workplace sexual harassment.

What is sexual harassment?

The Sex Discrimination Act 1984 (Cth) defines the nature and circumstances in which sexual harassment is unlawful. It is also unlawful for a person to be victimised for making, or proposing to make, a complaint of sexual harassment to the Human Rights and Equal Opportunity Commission.

Examples of sexually harassing behaviour include:

  • unwelcome touching;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates;
  • requests for sex;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • insults or taunts based on sex;
  • sexually explicit physical contact; and
  • sexually explicit emails or SMS text messages.

No industry is immune – the high prevalence of sexual hartassment has meant that the Government really has no options but to strengthen existing laws in order to stamp out the problem.

The corporate sector has, by and large, welcomed the law reforms, although there are also concerns that implementing appropriate initiatives may be onerous for smaller businesses which don’t necessarily have in-house HR resources, and big budgets, and these are the majority of Australian businesses.

While sexual harassment and discrimination have been monitored and reported over the years, the issue was highlighted in early 2020 after Brittany Higgins made allegations that she had been sexualy assaulted in Parliament House by a colleague.

Bruce Lehrmann has pleaded not guilty to the charges, and the trial is expected to proceed in the ACT Supreme Court later this year, after it was postponed a few months ago by media coverage and comments that the defendant’s legal team argued could potentially taint the possibility of a ‘fair trial’.