The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill has been introduced into the House of Representatives to proactively prevent sexual discrimination and harassment.

UPDATE: The Bill was passed by both Houses of Parliament on 28 November 2022.

UPDATE: The Bill received Royal Assent on 12 December 2022.

The Respect@Work Report observed that the current legal framework is not effectively preventing sexual harassment because it is focused on addressing and responding to conduct that has already occurred. The Bill amends the Sex Discrimination Act 1984 (SD Act) to shift this focus by requiring employers and persons conducting a business to proactively prevent discrimination and harassment in their workplaces to achieve compliance with the SD Act.

The Bill states that an object of the SD Act is to ‘achieve substantive equality between men and women’.

The Bill would also insert a new objects clause to make clear that an object of the SD Act is to eliminate, so far as is possible, discrimination involving workplace environments that are hostile on the ground of sex.

If passed, the Bill would insert a new provision in the SD Act to prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex.

The Bill sets out the meaning of subjecting a person to a hostile workplace environment, which includes a requirement that a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.

The circumstances to be considered when determining whether the conduct is unlawful include: the seriousness of the conduct; whether the conduct was continuous or repetitive; the role, influence or authority of the person engaging in the conduct; and any other relevant circumstance.

The Bill would also insert a new provision in the SD Act to introduce a positive duty on all employers and persons conducting a business to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.

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