The federal government’s extension of the gender discrimination law to include politicians and judges is still far from adequate, according to prominent legal scholars.
Instead, they want a “radical overhaul” of the legislation.
It follows the federal government’s announcement on Thursday that it will amend the gender discrimination law to include politicians and judges, who were previously exempt from the laws.
The government said it would also adopt the 55 recommendations contained in the Respect at work report, in whole or in part.
So what are the changes?
Main changes to the Fair Labor Law and the Gender Discrimination Law:
- MPs, judges and state officials who grope and sexually harass their staff and colleagues will be accountable for the first time
- Sexual harassment will be included as a valid reason for firing someone
- Definition of “serious misconduct” in the Fair Work Act will include sexual harassment
- ‘Stop bullying order’ will be available in context of sexual harassment
- People will have two years to file complaints with the Australian Human Rights Commission, extending the current six-month deadline.
Why were MPs and judges exempted in the first place?
It wasn’t intentional, legal experts said TBEN.
Karen O’Connell, associate professor of law at the University of Technology Sydney, said judges and MPs had been excluded due to a narrower definition of “workplace participant” in previous legislation.
“Judges and MPs, who are not employers or standard employees, do not fit into the scope,” Professor O’Connell said.
“They weren’t singled out.”
Are the changes going far enough?
Not according to Professor O’Connell, who helped Gender Discrimination Commissioner Kate Jenkins prepare her monument Respect at work report.
“The main thing that I wanted them to take on was the positive duties in law, with law enforcement,” she said.
As part of this model, she said the onus is on employers to create a workplace where sexual harassment is avoided, rather than relying on the victim to “take a report through various obstacles.”
Although the government agrees with the change in principle, Attorney General Michaelia Cash has indicated that it will still not be legislated.
“A positive duty already exists for employers under the Occupational Health and Safety Act,” Ms. Cash said.
“We want consistency and we want to reduce complexity. So now we will see how you can implement this in sex discrimination law, without making the system more complex and not confusing people as to which direction to take. “
But Professor O’Connell said that was not enough.
“The occupational health and safety system is about health and safety,” she said.
“I don’t think this system has a nuanced idea to include the range of sexual harassment behaviors as a health and safety issue.”
Simon Rice is a professor of law at the University of Sydney and co-author of a book on gender discrimination called Australian Anti-Discrimination and Equal Opportunity Law.
He said a radical overhaul of the sex discrimination law would be “really exciting”, but that’s not happening.
“It’s an old law. People have to be aware that this adds another barnacle to an old boat, ”he said.
“So they’re going to add Parliament and the courts to the definition of employers. It’s not a drastic overhaul – it’s just about extending coverage to a different group of people.
“It’s a good thing, but it’s not radical. A serious overhaul would redefine harassment and ban it in public. “