On 27 September 2022 the Labor Government tabled new legislation – the Anti-Discrimination and Human Rights Amendment Bill 2022 – which seeks to implement further the recommendations in the ‘Respect@Work’ report published by the Sex Discrimination Commissioner in March 2020.
If enacted, the new legislation will impose greater obligations on employers and ‘persons conducting a business or undertaking’ (PCBUs) to prevent workplace sex discrimination, harassment and victimisation. It will also provide the Australian Human Rights Commission (AHRC) and the courts with greater powers to ensure compliance with those obligations.
The proposed legislative changes are summarised below.
What are the proposed legislative changes?
The proposed legislative changes include:
Positive duty to prevent workplace sex discrimination, harassment and victimisation
The proposed legislation seeks to impose on employers and ‘persons conducting a business or undertaking’ (PCBUs) a positive duty to prevent workplace sex discrimination, harassment and victimisation. Under the changes, employers and PCBUs will be required to take “reasonable and proportionate measures” to eliminate certain forms of unlawful sex discrimination under the Sex Discrimination Act, in an effort to encourage a proactive approach to compliance with the Act.
What “reasonable and proportionate measures” an employer or PCBU will be required to take will vary depending on their circumstances. The Explanatory Memorandum provides that such measures would be required to be directed to preventing unlawful conduct being engaged in by duty holders, employers, worker, agents and applicable third parties, and include implementing policies, collecting and monitoring data, providing appropriate support for workers and employees, and regular education and training.
Extended powers for AHRC to enforce positive duty
Under the proposed legislation the AHRC’s powers will be extended to enforce the positive duty now imposed on employers and PCBUs. The AHRC will be empowered to:
- conduct enquiries regarding compliance with the duty and make recommendations to achieve compliance
- issue compliance notices
- apply to the courts for an order to direct compliance with a compliance notice, and
- enter into Enforceable Undertakings.
The AHRC may initiate an inquiry into a person’s compliance with the duty where it is ‘reasonably suspected’ that the person is not complying.
It is proposed that the AHRC’s extended powers would come into force 12 months after the legislation receives Royal Assent. The Explanatory Memorandum states that the purpose of the delayed operation of these provisions is to provide time to employers and PCBUs to “understand their obligations under the positive duty and implement changes, if necessary”, and to allow the AHRC to “establish its new compliance functions”.
Systemic inquiries into unlawful discrimination
The proposed changes to the legislation will provide a function for the AHRC to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination.
The proposed changes to the legislation provide cost protections and certainty to parties, to the extent that a ‘costs neutrality’ approach (as it is described in the Explanatory Memorandum) will be adopted. The ‘default’ position will be that each party bears their own costs, with the courts retaining the discretion to depart from this position if they consider it appropriate, as opposed to costs following the event.
The proposed changes to the legislation clarify that victimisation can form the basis of civil action for unlawful discrimination. The Explanatory Memorandum provides that this change is intended to overcome previous ‘judicial uncertainty’ about the scope of the jurisdiction of the federal courts in relation to unlawful discrimination.
Amendments to the objects of the Sex Discrimination Act
The proposed legislation proposes to amend the objects of the Sex Discrimination Act by inserting the object to “achieve substantive equality between men and women” and the object to “eliminate, so far as possible, discrimination involving workplace environments that are hostile on the ground of sex”.
Amendment to prohibition on harassment on grounds of sex
The express prohibition on harassment on the grounds of sex in the Sex Discrimination Act is proposed to be amended to remove the reference to ‘seriously’ demeaning conduct. The Explanatory Memorandum states that the purpose of this amendment is to “ensure that the provision does not impose an unnecessarily high threshold on applicants”.
Submissions to the Senate Inquiry in relation to the proposed legislative changes remain open until 12 October 2022.
What should employers and PCBUs do next?
For many years it has been recommended that employers and PCBUs take proactive steps to prevent inappropriate behaviour such as discrimination and sexual harassment in the workplace in order to minimise their legal and organisational risks.
Under the new legislation, any discretion that employers and PCBUs may have once had in respect of accepting such recommendations and taking proactive steps will be removed – employers and PCBUs must take such steps or otherwise risk being in breach of the Sex Discrimination Act.
It is therefore important that employers and PCBUs familiarise themselves with the proposed changes to the legislation and consider what, if any, steps that they might need to take within their organisations in order to comply with their increased obligations, in advance of the legislative changes becoming law.
Such steps may include:
- a review of the workplace environment and culture to determine the current level of risk
- the review or development of relevant policies and procedures, and/or
- providing further education and training for employees and managers.
Please contact our Workplace Discrimination Lawyers for help in navigating the proposed changes to the legislation, and in assessing whether your organisation is compliant with the positive duty.
We can also help you with developing and implementing relevant policies, or providing education and training to your managers, staff and other relevant persons.