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Thursday, 24 June 2021
Page: 29


Senator RUSTON (South AustraliaMinister for Families and Social Services, Minister for Women's Safety and Manager of Government Business in the Senate) (11:51): I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

SEX DISCRIMINATION AND FAIR WORK (RESPECT AT WORK) AMENDMENT BILL 2021

Sexual harassment is unacceptable in any context, whether in the workplace or elsewhere. Everyone has the right to feel safe at work.

That is why the Australian Government funded the Australian Human Rights Commission to undertake a landmark National Inquiry into Sexual Harassment in Australian Workplaces. The first of its kind in the world.

The Government's response - released on 8 April 2021 - is about creating a new culture of respectful behaviour in Australian workplaces, because the end product of the National Inquiry - the Respect@Work Report - found that too many workplace cultures fall short.

The Respect@Work Report made 55 recommendations directed at the Australian Government, states and territories, employers, and industry groups, highlighting the important roles that all groups have in supporting cultural change and creating safe workplaces.

The Australian Government has already provided more than $20.5 million over four years in the 2021-22 Federal Budget to support implementation of its response to the Respect@Work Report, outlined in the 'Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces'.

For those recommendations that require action from the state and territory governments, the Australian Government has led discussions through appropriate national forums, including at National Cabinet and the Meeting of Attorneys-General.

The Government looks forward to receiving the State and Territory responses to the Respect@Work Report by 30 June 2021.

Today the Government presents the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021,which implements the Government's legislative commitments under the Roadmap and directly responds to the findings of the Respect@Work Report. These legislative amendments are aimed at rapidly strengthening and streamlining the national legal frameworks that deal with sexual harassment. The Bill makes important changes to the Sex Discrimination Act 1984, the Australian Human Rights Commission Act1986, and the Fair Work Act 2009 to ensure Australia's legal and regulatory frameworks are effective in preventing and responding to sexual harassment.

Sex Discrimination Act

The Sex Discrimination Act provides an important framework to protect against discrimination on various grounds, including discrimination involving harassment.

The Bill introduces a new object in the Sex Discrimination Act of achieving equality of opportunity between men and women. While achieving substantive equality between men and women requires a cultural change that goes beyond legislative reform, the Government is confident that this Bill, in addition to the other work that the Government and civil society is progressing to implement the Roadmap, will be a step towards achieving equality of opportunity between men and women in Australia.

The Bill also makes a number of changes to expand the scope of existing protections under the Sex Discrimination Act.

These include amendments to remove the exemption of state and territory public servants, and clarify that the Sex Discrimination Act extends to Members of Parliament and Judges at the federal and state and territory levels, to ensure all workers have the same protections from sex discrimination and sexual harassment regardless of their jurisdiction, occupation or workplace.

The Bill also makes clear that discrimination involving harassment on the ground of sex is expressly prohibited and will not be tolerated. Making this clear under the Sex Discrimination Act will ensure there is a clear avenue of redress for sex based harassment, that does not involve sexualised conduct but is also unacceptable.

Importantly, the Bill fills gaps in the Sex Discrimination Act's current coverage of types of workers in an employment context. The Respect@Work Report identified that the sexual harassment protections do not cover all persons in the contemporary world of work. The Bill will fill these gaps by expanding the scope of the sexual harassment and sex-based harassment protections to all types of paid and unpaid workers. The amendments draw on concepts used in the model Work Health and Safety laws to ensure greater consistency between legal frameworks that address sexual harassment, making it easier for workers and employers to navigate these frameworks.

The Bill also makes a number of technical amendments, such as clarifying that the victimisation offence in the Sex Discrimination Act can form the basis of a civil action for unlawful discrimination, and ensuring that the ancillary liability of persons involved in unlawful acts extends to sexual and sex-based harassment prohibitions under the Sex Discrimination Act.

Australian Human Rights Commission Act amendments

To ensure complainants are encouraged to come forward when unlawful discrimination under the Sex Discrimination Act does occur, the Bill will amend the Australian Human Rights Commission Act to reduce procedural barriers.

The Bill will amend the President's discretion to terminate a complaint under the Sex Discrimination Act on the grounds of time so that it does not arise until 24 months after the alleged discrimination took place. This discretion previously arose after six months.

Fair Work Act amendments

In addition to reforms to the Sex Discrimination Act and Australian Human Rights Commission Act, the Bill will amend the Fair Work Act to clarify what action can be taken to deal with workplace sexual harassment.

The Bill adds a new legislative note in the unfair dismissal provisions in the Fair Work Act, which makes clear that sexual harassment can constitute a valid reason for dismissal. This is not a change to the law - sexual harassment of course can already constitute a valid reason for dismissal. However, the addition of the legislative note will provide greater certainty to employers that taking disciplinary action in response to workplace sexual harassment is appropriate and reasonable. It also clearly communicates to perpetrators of sexual harassment that this type of behaviour will not be tolerated in the workplace.

The Bill will also clarify and expressly provide for the availability of 'stop orders' in relation to sexual harassment within the existing stop-bullying jurisdiction. This change will ensure a clear pathway for those who have been sexually harassed at work to seek an order from the Fair Work Commission to prevent further workplace sexual harassment. This will enable more sexual harassment victims to pursue workplace claims through the Commission, which offers an independent, expeditious and low cost avenue for handling workplace sexual harassment.

These amendments form an integral part of the Government's long term commitment to building a culture of safe, respectful relationships in Australian workplaces.

This Bill also introduces an important change to the compassionate leave provisions in the Fair Work Act that will enable an employee to take compassionate leave if they, or their spouse or de facto partner, has a miscarriage.

A miscarriage can be an incredibly difficult experience for many families and sadly one that is often surrounded with social stigma and silence.

It is estimated that one in five confirmed pregnancies in Australia ends in miscarriage before 20 weeks, however the Fair Work Act does not currently provide any specific leave entitlements for miscarriage.

Currently, the Fair Work Act provides two days' paid compassionate leave (unpaid for casuals) when a member of the employee's immediate family or household contracts or develops a personal illness, or sustains a personal injury, that poses a serious threat to their life, or dies. Compassionate leave is also available where a child is stillborn, where the child would have been a member of the employee's immediate family, or a member of the employee's household, if the child had been born alive.

This change will ensure that an employee can take time away from work to grieve and come to terms with their loss.

The Government recognises that most employers are supportive of their employees. Employers can of course continue to offer leave that goes beyond the minimum safety net and employees will continue to have the benefit of any additional related leave terms in existing enterprise agreements.

While not everyone who experiences a miscarriage will want to access compassionate leave, it is important that we give employees the choice to access that leave, should they choose to.

On behalf of the government, I would like to thank all of those who have shared their experiences and incredibly painful memories to bring these changes to Parliament, including the Pink Elephants Support Network and Mr Julian Simmonds MP, Member for Ryan who has championed this amendment.

Conclusion

In summary, this Bill will ensure all Australians are protected from workplace sexual harassment, by expanding the scope of existing sexual harassment prohibitions, promoting clarity for employers and workers, and reducing procedural barriers for sexual harassment complainants.

Together with the other commitments outlined in the Government's Roadmap for Respect, these amendments will support the creation of safe workplaces and are essential for advancing both women's safety and economic security.

INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR AMENDMENT BILL 2021

The Government is committed to ensuring the safety and security of all Australians. Australia has a robust national security and counter-terrorism framework to ensure that our agencies have the powers they need to prevent terrorist attacks and deal with those who would seek to commit them.

These laws need regular assessment to ensure that powers remain appropriate to the current threat environment, and that the objective of protecting national security is balanced against upholding the rights and freedoms of individuals.

The Independent National Security Legislation Monitor (the Monitor) independently reviews the operation, effectiveness and implications of Australia's national security and counter-terrorism laws, ensuring they contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary.

This Bill would amend the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to clarify reporting arrangements for the Monitor and provide a framework for the engagement of staff to assist the Monitor in its work.

The amendments will assist the Monitor in the performance of their role, and as a result, will help ensure Australia's counter-terrorism and national security legislation remains proportionate and consistent with Australia's international obligations.

Amendments to clarify the Monitor ' s reporting arrangements

A key function of the Monitor is to review Commonwealth counter-terrorism and national security legislation and to report on the outcomes of those reviews.

The Monitor can conduct own motion reviews on specific matters, and must conduct specific statutory reviews and reviews on matters referred by the Attorney-General or the Prime Minister. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) may also refer matters to the Monitor, and the Monitor may decide to take up the referral as an own motion review.

This Bill would amend the INSLM Act to enable the Monitor to report on own motion inquiries in standalone reports, separate to the Monitor's annual reports, and to clarify the review and reporting arrangements for statutory reviews, own motion reviews and reviews conducted under a PJCIS referral.

This responds to recommendations made by the former Monitor, Dr James Renwick CSC SC, and by the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community.

Amendments to address the engagement of staff to assist the Monitor

The Bill would also provide a framework for the engagement of staff to assist the Monitor. The Monitor is a part-time statutory appointment. When the position was established in 2010, it was envisaged that the Monitor would only undertake one review a year. Since then, the role has evolved, including through an increased number of statutory reviews of various legislation.

The Monitor is now supported by three permanent employees of the Attorney-General's Department, whose services have been made available to assist the Monitor, as well as legal representatives who are engaged in relation to specific reviews.

This Bill would formalise arrangements by amending the INSLM Act to include provisions for the engagement of staff (including contractors) to assist the Monitor with the performance of functions and exercise of powers.

The Bill also provides current and former staff of the Monitor with appropriate protections for any acts or omissions done by that person in good faith during the course of assisting the Monitor in the performance of its functions or exercise of its powers.

These protections are similar to arrangements for the staff of other statutory oversight officeholders, such as the Commonwealth Ombudsman, the Integrity Commissioner and the Inspector-General of Intelligence and Security.

Conclusion

The Government acknowledges and appreciates the Monitor's ongoing role in reviewing the operation, effectiveness and implications of Australia's national security and counter-terrorism legislation. If passed, this Bill will assist the Monitor in the performance of their role, helping to ensure Australia's counter-terrorism and national security legislation remains necessary, appropriate and proportionate.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.