Response 835428791

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Questions about you

3. Who are you making this submission for?

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Myself
Another person
Organisation (including Commonwealth, state, territory or local government agency)

7. Where do you live/where is your organisation based?

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ACT
NSW
VIC
TAS
SA
WA
NT
QLD
External territories
Outside Australia

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Male
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9. Making your submission public

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(Required)
I agree to my submission being made public under my/my organisation’s name
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Issue 1: Recommendation 16(c) – Hostile work environment

1. What are your views on amending the Sex Discrimination Act to prohibit the creation or facilitation of a hostile work environment on the basis of sex?

Please select one item
Support amending the Sex Discrimination Act to prohibit the creation or facilitation of a hostile work environment on the basis of sex
Do not support amending the Sex Discrimination Act to prohibit the creation or facilitation of a hostile work environment on the basis of sex
Unsure

2. If you SUPPORT this proposal, what are your key reasons?

Please select all that apply
The current law requires clarification and this proposal would fill a gap that exists in the current legal frameworks
People who are exposed to sexual conduct, but who are not the direct target, are currently not clearly covered by the sexual harassment provisions in the Sex Discrimination Act and should be
A legislative change would send a strong message to people in the workplace about their obligations and role in preventing sexual harassment
The Australian Human Rights Commission should have a clear responsibility in relation to this type of conduct, in addition to complaint mechanisms and remedies available under other existing frameworks
Other

4. Which of the following workplace roles or positions, if any, should a prohibition on creating or facilitating a hostile work environment apply to?

Please select all that apply
Executive leadership (senior managers, leaders)
Middle management (managers, supervisors)
Junior staff
All individual/s who contribute towards creating or facilitating an intimidating, offensive, humiliating and hostile work environment
Other

Issue 2: Recommendation 17 – Positive duty

1. What are your views on introducing a positive duty into the Sex Discrimination Act to prevent sexual harassment from occurring in Australian workplaces?

Please select one item
Support introducing a positive duty into the Sex Discrimination Act
Do not support introducing a positive duty into the Sex Discrimination Act
Unsure

2. If you DO support the introduction of a positive duty into the Sex Discrimination Act, what are your key reasons?

Please select all that apply
Promote a culture of prevention in workplaces – the proposal would contribute to cultural change around addressing sexual harassment, promoting a preventative approach rather than a reactive, remedial one
More effective than the existing work health and safety duty – the proposal would be a more targeted measure than the existing work health and safety duty, which requires persons conducting businesses or undertakings (PCBUs) to ensure, so far as reasonably practicable, the health and safety of workers
Capacity to address systemic issues – a positive duty would better enable systemic sexual harassment issues to be addressed, compared to the current individual complaints-based framework
Involvement of a specialist regulator – the proposal would mean a regulator with a focus on sexual harassment would enforce compliance with the positive duty
Shift the burden of enforcement from individuals – a positive duty would transfer the burden of upholding the legal framework from individuals who experience sexual harassment to employers, businesses and institutions
Alignment with the existing Work Health and Safety framework's focus on prevention – the proposal would align employers' obligations under the Sex Discrimination Act with their obligations under the Work Health and Safety framework, by focusing on preventative efforts
Other

4. What, if any, complexities would introducing a positive duty into the Sex Discrimination Act create for employers and/or people who experience sexual harassment?

None. It would simply mean that employers must look for ways in which the workplace they manage/oversee might not be safe, beyond the physical setup of the premises to include how staff interact.

5. What are your views on the interaction between a new positive duty in the Sex Discrimination Act and the existing work health and safety duty? Can you identify any particular areas of interaction or concern that would require further thought or consideration, such as between different regulators when investigating issues of sexual harassment?

The new law is consistent with work and safety’s preventative and proactive focus

6. What other options to prevent sexual harassment in the workplace could the Government consider, alongside or instead of, introducing a positive duty into the Sex Discrimination Act?

Please select all that apply
Providing further education on employer obligations and building capacity across all industries on creating safe workplace cultures
Encouraging increased compliance with the existing Work Health and Safety framework, for example through training or production of further guidance materials
Establishing a specific accreditation framework targeted at sexual harassment, under which businesses could seek accreditation for facilitating workplace environments that are free from intimidating, hostile, humiliating or offensive behaviour and have that accreditation removed
Establishing industry codes of conduct/practice, which would set out specific standards for sexual harassment prevention and could be mandatory or voluntary to adopt (building on efforts already underway by some industries to respond to the findings of the Respect@Work Report and under recommendation 47
Other
Please expand on your response
These Measures should go alongside the legislation not instead of it.

Codes of conduct shouldn’t be voluntary on this issue.

7. What are your views on how broadly or narrowly a positive duty should apply in terms of who it covers?

Please select one item
Apply to all employers as broadly as possible within the working world, regardless of size, structure and revenue, with no exclusions
Apply to employers generally but there should be some exclusions, for example for micro-businesses, community or volunteer organisations
Apply to certain types of employers (such as public sector employers), or employers of a certain size, structure or revenue
Other
Please expand on your response
If you employ people, you should keep the, safe

8. What considerations should be relevant when determining whether a duty holder has adequately discharged a positive duty?

Please select all that apply
The nature and size of the business or operations
Business resources
Business operational priorities
The practicability and costs of the measure
Any systemic issues within that industry or workplace
Any other relevant facts or circumstances
Other
Please expand on your response
If it costs too much to keep your staff safe, then you’ve employed the wrong staff

9. What assistance or guidance would help support employers to meet any new positive duty obligations?

Guidance on disciplinary frameworks to deal with staff who are creating an unsafe environment
Industrial relations laws that allow for a quick disciplinary response (ie termination) if staff repeatedly create an unsafe work environment

Issue 3: Recommendation 18 – Enforcement powers for the Australian Human Rights Commission

1. If you SUPPORT the introduction of a positive duty, how should it be enforced?

Please select one item
Option 1 – Utilising existing complaints mechanisms (i.e. no new enforcement powers)
Option 2 – Enforcement powers modelled on the framework contained in the Equal Opportunity Act 2010 (Vic), where the Victorian Equal Opportunity and Human Rights Commission has investigative powers, but lacks the enforcement powers to issue compliance notices or seek enforceable undertakings
Option 3 - New enforcement powers, as recommended in the Respect@Work Report
Other

2. If you SUPPORT the introduction of enforcement powers (option 3 above) for the Australian Human Rights Commission, what powers should be made available?

The same kind of powers that asic has in relation to the enforcement of a financial advisers fiduciary duty to their clients

3. Should the Australian Human Rights Commission be able to exercise enforcement powers in relation to an alleged breach of the positive duty by any employer, regardless of size or number of employees?

Please select one item
Yes
No
Unsure

Issue 4: Recommendation 19 – Inquiry powers for the Australian Human Rights Commission

1. What are your views on providing the Australian Human Rights Commission with new or additional inquiry powers to inquire into systemic unlawful discrimination, including sexual harassment?

Please select one item
Support providing the Australian Human Rights Commission with new or additional inquiry powers to inquire into systemic unlawful discrimination, including sexual harassment
Do not support providing the Australian Human Rights Commission with new or additional inquiry powers to inquire into systemic unlawful discrimination, including sexual harassment
Unsure

2. If you SUPPORT providing the Australian Human Rights Commission with new or additional inquiry functions, what are your key reasons?

The system is clearly broken. Doing more of the same won’t fix it.

5. What are your views on accompanying any new or additional inquiry powers for the Australian Human Rights Commission with additional investigatory powers (such as the power to require the giving of information, the production of documents and the examination of witnesses)?

Please select one item
Support accompanying any new or additional inquiry powers for the Australian Human Rights Commission with additional investigatory powers
Do not support accompanying any new or additional inquiry powers for the Australian Human Rights Commission with additional investigatory powers
Unsure

6. Are any investigatory powers appropriate to accompany a broad inquiry power for the Australian Human Rights Commission?

Please select all that apply
Require the giving of information
Require the production of documents
Enable the examination of witnesses
Issue penalties for non-compliance
Other

Issue 5: Recommendation 23 – Representative actions

1. What are your views on amending the Australian Human Rights Commission Act to allow representative bodies to commence representative actions in the Federal Court in relation to anti-discrimination matters?

Please select one item
Support amending the Australian Human Rights Commission Act to allow representative bodies to commence representative actions in the Federal Court in relation to anti-discrimination matters
Do not support amending the Australian Human Rights Commission Act to allow representative bodies to commence representative actions in the Federal Court in relation to anti-discrimination matters
Unsure

2. If you SUPPORT this proposal, what are your key reasons?

Please select all that apply
The amendment may increase the potential for systemic issues to be pursued under the Sex Discrimination Act and more matters to be heard in the federal courts without placing the burden on individuals to bear the cost and responsibility for commencing proceedings
The amendment may provide consistency for individuals affected by sexual harassment and supported by representative bodies if their matter progresses from the Australian Human Rights Commission to the federal courts
The amendment may encourage more individuals to pursue legal remedies by reducing the financial and other burdens (for example, re-traumatisation) associated with pursuing litigation
The amendment may strengthen the role of representative bodies in addressing discrimination in the workplace, including sexual harassment
Other
Please expand on your response
Consistency reduces the chance for confusion

4. Do you consider representative complaints and representative proceedings (class actions) to be an effective mechanism for people to address anti-discrimination matters, such as sexual harassment?

Please select one item
Yes
No
Unsure

5. What are the advantages of allowing representative bodies to commence representative proceedings on behalf of people who have experienced discrimination, including sexual harassment, given they are already able to provide financial, legal and other support to applicants under the existing framework?

Not having to be an affected person in order to bring proceedings

7. What are your views on placing limits and restrictions on any amendments that would permit representative bodies to bring a representative proceeding on behalf of applicants in anti-discrimination matters to prevent potential misuse of such a mechanism? If you support limitations, what should these limits be?

Time limits could apply but must take into account that it can take years for a survivor of sexual harassment to be ready to face the reality of the abuse

Issue 6: Recommendation 25 – Costs protections

1. What are your views on changing the current costs model?

Please select one item
Support changes to the current costs model
Do not support changes to the current costs model
Unsure

2. If you SUPPORT a change to the costs model, what are your key reasons?

Please select all that apply
The current costs model deters applicants from initiating civil proceedings, even if they have a strong claim
The current costs model favours parties with significant resources, such as large employers and businesses
Other
Please expand on your response
Consistency with other acts such as Fair Work will reduce confusion

4. Which of the following options, if any, is the most appropriate costs model to apply in anti discrimination matters?

Please select one item
Replicate section 570 of the Fair Work Act in the Australian Human Rights Commission Act – each party bears their own costs unless one party acted vexatiously or unreasonably
Cost neutrality – each party bears their own costs in the first instance, but the courts may make exemptions in the interests of justice
Cost capping – increased use of cost capping orders in anti-discrimination matters
Other