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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SEX DISCRIMINATION AMENDMENT (PROHIBITING ALL SEXUAL
HARASSMENT) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by the authority of Zali Steggall OAM MP)
Outline
Sex Discrimination Amendment (Prohibiting
All Sexual Harassment) Bill 2021
General Outline
1 The main purpose of the Bill is to address gaps in the Sex Discrimination
Act to ensure that the act of sexual harassment is prohibited in all situations,
rather than exclusively those named in the Act. By omitting the various clauses
outlining the circumstance where sexual harassment is prohibited and replacing
them with a blanket prohibition of sexual harassment, the Bill addresses important
gaps in the existing legislation.
2 These gaps have been highlighted previously by the Australian Human
Rights Commission and the Law Council of Australia in their submissions to the
2008 Senate Legal and Constitutional Affairs Committee's Inquiry into the
Effectiveness of the Sex Discrimination Act 1984 (Cth). The inquiry
recommended that the Sex Discrimination Act be amended to 'include a general
prohibition against sex discrimination and sexual harassment in any area of public
life' however the recommendation was not acted upon.
3 The Australian Human Rights Commission raised the concerns again last
year in their Respect@Work: Sexual Harassment National Inquiry Report (2020),
recommendation 16 highlights the need for a range of amendments to the Sex
Discrimination Act, including that sex-based harassment be expressly prohibited
and that the exemption of State based government employees be removed. Note
that given the focus of this legislation is on sexual harassment, changes that would
impact on sex discrimination have not been incorporated. Similarly, the Law
Council of Australia produced a National Action Plan to Reduce Sexual
Harassment in the Legal Profession which included proposed amendments to the
Sex Discrimination Act 1984 very similar to those of this Bill.
4 The Bill makes the important clarification that those in positions that were
not previously conceived of such as gig economy workers and those who were
historically overlooked such as statutory appointees including judges and
members of parliament are adequately protected, as well as personally liable.
5 This Bill also addresses identified shortcomings in the legal circumstances
to provide protection against sexual harassment that may occur between witnesses
and lawyers; lawyers and judicial officers or court staff; solicitors and barristers;
or between barristers.
6 Amendments to section 105 of the Act expand the provisions which prohibit
the 'aiding and abetting' of sexual discrimination to also include a prohibition of
'aiding and abetting' sexual harassment.
Financial Impact
Nil
Statement of compatibility with human rights
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill
2021
This Bill is 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/Disallowable Legislative Instrument
The objective of the Bill is to amend the Sex Discrimination Act 1984 (SDA) to
provide a general prohibition on sexual harassment, such that it will be unlawful
for a person to sexually harass another person in any setting or circumstance. The
Bill delimits the settings in which sexual harassment is currently unlawful under
the SDA by:
Omitting the words "in the workplace, in educational institutional and in
other areas of public activity" from sub-section 3(c), so as to remove the
suggestion that the objective of the SDA - to eliminate, so far as is
possible discrimination involving sexual harassment - is constrained to
such settings.
Repealing sections 28B to 28L of the SDA, which currently outline the
various contexts in which sexual harassment is unlawful, and replacing
these sections with a general prohibition on sexual harassment.
Amending section 9 to explicitly including the following in the purview of
Division 3 of Part II of the SDA:
o sexual harassment by a member of a registered organisation or a
member of the staff of a registered organisation; and
o acts done in the course of performing any function, or exercising
any power, under a Commonwealth law or for the purposes of a
Commonwealth program; or
o acts done in the course of carrying out any other responsibility for
the administration of a Commonwealth law or the conduct of a 26
Commonwealth program.
Statement of compatibility with human rights
Amending the 'aiding and abetting' provisions in sections 105 of the SDA
so that the section applies to Division 3.
These proposed amendments would bridge a lacuna in the current drafting of the
SDA which has resulted in Parliamentarians and other statutory appointees not
being protected from or liable for sexual harassment in their workplace. This
bridge will, likewise, bring members of parliament, other statutory appointees as
well as self-employed workers, gig economy workers and contractors within the
protection of the SDA.
Human rights implications
The Bill does not introduce any limitations on human rights. By amending the
SDA to prohibit sexual harassment in all settings, the Bill positively engages and
promotes the following rights:
The right to equality and non-discrimination contained within articles 2
and 26 of the International Covenant on Civil and Political Rights
(ICCPR) and article 2(2) of the International Covenant on Economic,
Social and Cultural Rights (ICESCR), inter alia.
The right to work and the right to just and favourable conditions of work
contained within Articles 6(1) and 7 of ICESCR.
The right to self-determination contained within Article 1(1) of the
ICESCR and Article 1(1) of the ICCPR.
The right to an effective remedy and right to a fair hearing contained
within Article 2(3) of the ICCPR.
Rights to equality and non-discrimination
The rights to equality and non-discrimination sit at the core of all major human
rights treaties to which Australia is a party, including:
articles 2 and 26 of the ICCPR;
article 2(2) of the ICESCR;
articles 1, 2, 4 and 5 of the International Convention on the Elimination of
All Forms of Racial Discrimination; and
articles 2, 3, 4 and 15 of the Convention on the Elimination of All Forms
of Discrimination Against Women.
Statement of compatibility with human rights
The objective if this Bill, being to delimit the settings in which sexual harassment
is unlawful, ensures that the non-discriminatory application of the SDA which, in
turn, ensures that all persons are equal before the law and entitled, without
discrimination, to the equal protection of the SDA. This objective is squarely
aligned with Article 26 of the ICCPR:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
The Bill promotes the right to equality and non-discrimination by amending the
SDA to ensure that members of parliament, judges and other statutory appointees
as well as self-employed workers, gig economy workers and contractors are
adequately protected from sexual harassment, as well as personally liable for
sexual harassment.
Rights in work and the right to self determination
Articles 6 and 7 of the ICESCR provide for the right to work and rights in work,
including the enjoyment of just and favourable conditions of work. The right to
self-determination in Article 1 of the ICESCR and the ICCPR includes the right to
freely pursue economic development. Rights to equality and non-discrimination in
employment are provided under Article 11 of the Convention on the Elimination
of All Forms of Discrimination against Women.
Sexual harassment in the workplace presents a direct threat to the full and
effective enjoyment of safe and just working conditions. Safe and just working
conditions are a fundamental precondition to a person's ability to pursue
unencumbered development and advancement in the workplace. As such, where
the right to safe and just working conditions is threatened, so too is the right to
work and the right to freely pursue economic development and opportunity.
Article 2(2) of ICESCR provides that the right to work must be available without
discrimination of any kind:
The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status.
Statement of compatibility with human rights
Thus, access to the right to work and rights in work enshrined in Articles 1, 6 and
7 of the ICESCR and Article 1 of the ICCPR cannot be contextually limited. By
including a general prohibition against all sexual harassment in any area of public
life, this Bill ensures that no such limitation exists. By expanding the coverage of
the SDA to all workers and work places, this Bill expands access to the right to
work unhindered by sexual harassment and discrimination to all workers and
work places.
Right to an effective remedy and right to a fair hearing
Article 2(3) of the ICCPR enshrines the right to an effective remedy for breaches
of the ICCPR by providing that "any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity". By
amending section 9 of the SDA this Bill brings acts done in the course of
performing any function, exercising any power, or carrying out any other
responsibility under a Commonwealth law or program within the reach of the
SDA. Similarly, by delimiting the contexts in which sexual harassment is
unlawful by replacing sections 28B to 28L of the SDA with a general prohibition,
the Bill delimits the circumstances in which effective remedy may be pursued.
The current coverage of the SDA is inconsistent, meaning that the right to an
effective remedy under the act for victims of sexual harassment, is not
comprehensively available. This Bill clarifies the SDA such that any person
performing work, regardless of the setting, enjoys the protection of the law and
has recourse to effective remedy under the law. In doing so doing, the Bill
promotes the right to an effective remedy and right to a fair hearing
Conclusion
The Bill is compatible with human rights because it advances the protection of
human rights, particularly the rights to equality and non-discrimination, to work,
to self-determination and to effective remedy. The Bill does not introduce any
limitations human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Notes on clauses
Notes on clauses
Part 1--Preliminary
Clause 1--Short title
1 Clause 1 specifies that the short title of the Bill, once enacted, will be the
Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Act 2021.
Clause 2--Commencement
2 Clause 2 provides for the Bill to commence as an Act on the day of the
Royal Assent.
Clause 3--Schedules
3 Clause 3 clarifies the interaction of schedules in this Act with others in the
Sex Discrimination Act.
Schedule 1--Amendments
1 Paragraph 3(c)
4 This amendment ensures that Division 3 of Part II, as expanded by this Bill,
relies on the same constitutional legislative powers (including those in relation to
workplaces and Commonwealth programs) as the existing Division.
2 Subsection 9(1) (definition of prescribed provisions of 7
Division 3 of Part II):
5 Consequential amendment to remove references to clauses being removed.
3 Subsection 9(6)
6 Consequential amendment to changes the reference paragraph.
4 At the end of section 9
7 Clarifies the workplace specific clauses over which the Commonwealth has
express jurisdiction.
5 Subsection 13(2)
8 Repeals the exemption of State based public servants from the
Commonwealth sexual harassment legislation.
Notes on clauses
6 Sections 28B-28L
9 Repeals clauses which specify where sexual harassment is not permitted and
replaces with a new 28B that prohibits sexual harassment in all circumstances
7 Section 105
10 Omits clauses which limit the operation of Section 105 to just sex
discrimination to extend the operation to also include sexual harassment.