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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ANTI-DISCRIMINATION AND HUMAN RIGHTS LEGISLATION AMENDMENT
(RESPECT AT WORK) BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
ABBREVIATIONS USED IN THE SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Commission Australian Human Rights Commission
AHRC Act Australian Human Rights Commission Act 1986
Bill Anti-Discrimination and Human Rights Legislation
Amendment (Respect at Work) Bill 2022
FC Act Federal Court of Australia Act 1976
FCFCA Act Federal Circuit and Family Court of Australia Act 2021
Federal courts Federal Court of Australia and Federal Circuit and Family
Court of Australia
PCBU A person conducting a business or undertaking
Respect@Work Report Respect@Work: National Inquiry into Sexual Harassment in
the Workplace (2020)
SD Act Sex Discrimination Act 1984
Model WHS laws Work Health and Safety Act 2011
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AMENDMENTS TO THE ANTI-DISCRIMINATION AND HUMAN RIGHTS
LEGISLATION AMENDMENT (RESPECT AT WORK) BILL 2022
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the Anti-Discrimination and Human Rights
Legislation Amendment (Respect at Work Bill) 2022 and the Explanatory
Memorandum to the Bill is to provide greater clarity and certainty on the operation of
the Bill.
FINANCIAL IMPACT
2. Nil.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill
2022
1. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. Amendment (1) would amend the heading of subsections 47C(4) and (5) to make
clear that those subsections cover conduct engaged in by any person (such as a
customer) against an employee or a worker.
3. Amendment (2) would correct a term used in new section 47C so that it refers to
measures, rather than steps, aligning it with the language of the positive duty.
4. Amendment (3) would clarify that the positive duty in new section 47C of the Sex
Discrimination Act 1984 (SD Act) does not limit, or otherwise affect, a duty that a
duty holder has under a Commonwealth, state or territory WHS law. This would
make it clear that the positive duty inserted by the Bill is intended to operate
concurrently with state and territory WHS laws.
5. Amendment (4) would provide that a person has 21 days to seek review of a
compliance notice in the Federal Courts. This would provide certainty to the
Commission and people who have received a compliance notice about the period in
which a person is able to seek review.
6. Amendment (5) would remove the cost protection provision and associated
amendments (Schedule 5 of the Bill) from the Bill. The effect of this amendment
would be to maintain the status quo in relation to settling costs in unlawful
discrimination matters - being that the court has a broad discretion to award costs as
it sees fit. In practice, this has meant that costs are generally awarded following the
event with an unsuccessful party being required to pay the costs of the successful
party.
Human rights implications
7. Amendments (1), (2) and (3) are clarificatory in nature and would not engage human
rights and freedoms.
8. Amendment (5) maintains the status quo in relation to awarding costs in unlawful
discrimination matters and would not change its existing human rights implications.
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Rights to an effective remedy
9. Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) and
Article 2 of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) provide the right to an effective remedy for persons who
have suffered human rights violations by Australian authorities, as well as persons
who have suffered discrimination perpetrated by Australian authorities. The UN
Human Rights Committee has stated that the right to an effective remedy
encompasses an obligation to bring justice to perpetrators of human rights abuses,
including discrimination, and also to provide appropriate reparation to the persons
who have suffered human rights abuses.
10. Amendment (4) would engage the right to an effective remedy by placing a 21 day
time limit on the ability of a person who has been issued with a compliance notice in
relation to the positive duty introduced by the Bill to seek review of that notice. This
amendment would provide certainty to the Commission and persons or entities (such
as businesses) by ensuring that there is a set time in which to decide either to comply
with the notice or seek review of it. The 21 day time limit is appropriate and
reasonable, as it is consistent with the period a person has to seek internal
reconsideration of a compliance notice (that is, reconsideration of the notice by the
Commission).
Conclusion
11. The amendments to the Bill are compatible with human rights because they promote
the protection of human rights and, to the extent that they may operate to limit human
rights, the limitations are reasonable, necessary and proportionate to achieve
legitimate objectives.
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NOTES ON AMENDMENTS
Amendment 1
Third parties and the positive duty
1. This amendment would add the words 'by any person' to the end of the heading of
subsections 47C(4) and (5), amending it to read 'Other conduct towards employees
and workers by any person'. This amendment would make it clear that subsections
47C(4) and (5) cover conduct engaged in by a broader range of people, including third
parties, such as customers and suppliers, who are not necessarily employed by the
relevant employer or working in the relevant PCBU's workplace, against employees
and workers of the workplace.
2. As explained in the Explanatory Memorandum to the Bill, this means that an
employer or PCBU must take measures to protect their employees or workers from
certain conduct (sexual harassment, sex-based harassment, hostile work environments
and victimisation) by third parties, such as customers.
Amendment 2
Correction
3. This amendment would correct new paragraph 47C(6)(c) of the SD Act so that it
refers to the practicability and the cost of measures to eliminate conduct covered by
subsection (2) or (4), rather than steps. This would ensure that the language in
subsection 47C(1) and paragraph 47C(6)(c) is appropriately aligned.
Amendment 3
Concurrent operation
4. This amendment would insert new subsection 47C(7) to provide that section 47C does
not limit or otherwise affect a duty a person has under a Commonwealth, state or
territory WHS law.
5. This amendment would make it clear that the positive duty in section 47C is intended
to operate concurrently with state and territory WHS laws. The inclusion of this
provision would also provide greater clarity to PCBUs as to the standards they are
required to comply with across the two frameworks.
6. The amendment would also insert new subsection 47C(8) to provide that paragraph
47C(7)(b) does not limit the operation of sections 10 or 11 of the SD Act, which also
refers to state and territory WHS laws in a separate context.
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Amendment 4
Timeframe for a person to seek review of a compliance notice in the federal courts
7. New subsection 35H(1A) sets out the timeframe for a person to seek review of a
compliance notice in the federal courts.
8. Paragraph 35H(1A)(a) provides that if the compliance notice has been reconsidered
by the President under section 35G of the AHRC Act, a person has 21 days after
being notified of the outcome of reconsideration of the notice to apply to the federal
courts for a review of the notice.
9. Under paragraph 35H(1A)(b), where reconsideration is not sought, a person has 21
days after the day the compliance notice was given to apply to the federal courts for
review of the notice.
10. A timeframe of 21 days is appropriate as it is consistent with the period a person has
to seek internal reconsideration of a compliance notice under new section 35G. This
amendment would provide certainty to the Commission and businesses by ensuring
that a person has a set time in which to decide either to comply or seek review.
11. For example, the Commission issues a compliance notice to a business on 19 October
(pursuant to section 35F). The notice specifies that the business has 21 days to request
reconsideration of the notice by the President of the Commission under new
subsection 35G(1) or to apply to apply to the federal courts for review of this
compliance notice under new paragraph 35H(1A)(b). On 25 October, the firm
requests reconsideration of the compliance notice by the President and sets out the
reasons for their request. On 8 November, the President issues the firm with written
notice that following reconsideration, the compliance notice was affirmed (per
paragraph 35G(6)(a)). The business disagrees with the President's decision and
applies to the federal courts for review of the notice within 21 days.
Amendment 5
12. This amendment would remove the cost protection provision and associated
amendments (Schedule 5 of the Bill) from the Bill.
13. The Senate Legal and Constitutional Affairs Legislation Committee heard different
views on the Bill's proposal to introduce a cost neutrality model for unlawful
discrimination proceedings in the federal courts. This issue will be the subject of
further consideration prior to any legislative change.
14. The effect of this amendment would be to maintain the status quo in relation to
settling costs in unlawful discrimination matters, being that the court has a broad
discretion to award costs as it sees fit under section 43 of the FC Act and section 214
of the FCFCA Act (referenced in notes 1 and 2 under section 46PO of the AHRC
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Act). In practice, this means that costs will generally be awarded following the event
with an unsuccessful party being required to pay the costs of the successful party.
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