Section 1: Introduction
Accordingly, the Commission recommends
changes to the Sex Discrimination Act that
ensure:
• the objects include achieving
substantive equality
• the definitions of ‘workplace
participant’ and ‘workplace’ cover
all people in the world of work,
including those who are paid,
unpaid and self-employed
• that public servants are covered
• sex-based harassment is
expressly prohibited
• creating or facilitating an
intimidating, hostile, humiliating
or offensive environment on
the basis of sex is expressly
prohibited.
The Commission frequently heard that
the lack of a positive duty in the Sex
Discrimination Act to prevent workplace
sexual harassment means that employers
place a higher priority on compliance with
employment law and work health and
safety laws than discrimination law. This
also places a heavy onus on individuals to
complain.
For this reason, the Commission
recommends that the Sex Discrimination
Act is amended to include a positive duty
requiring employers, with the possible
exception of micro-businesses, to take
reasonable and proportionate measures
to eliminate sex discrimination, sexual
harassment and victimisation, as far as
possible.
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To support the implementation of this
recommendation, the Commission also
recommends that the Sex Discrimination
Act is amended to provide it with
accompanying enforcement powers to
assess compliance with the positive duty.
As is evident throughout this report,
sexual harassment has specific systemic
and cultural drivers. Addressing these
is key to primary prevention efforts.
To facilitate this, the Commission
recommends that the Australian Human
Rights Act is amended to provide the
Commission with an enhanced inquiry
function to enable it to inquire into
systemic unlawful discrimination, including
systemic sexual harassment.
In line with the objective of promoting
consistency and clarity within the Sex
Discrimination Act, the Commission
recommends that liability for sexual
harassment be extended to those who
aid or permit another person to sexually
harass a person. Similarly, there is a need
to clarify that the Federal Court and the
Federal Circuit Court have jurisdiction
to hear an application under the Sex
Discrimination Act alleging victimisation
as a civil cause of action.
There is no specific timeframe in which
a complaint must be lodged with the
Commission. However, the President of
the Commission has the discretion to
terminate a complaint lodged more than
six months after the alleged unlawful
discrimination took place.51