The Commission heard that the six-month
timeframe associated with this discretion
fails to recognise the complex reasons
why a victim may delay making a sexual
harassment complaint immediately
following the alleged incident.
The Commission recommends this
timeframe for exercising the discretion to
terminate be extended to 24 months.
Similarly, following feedback and analysis,
the Commission considers that unions
and other representative groups should
be able to bring representative claims
to court, consistent with the existing
provisions in the Australian Human
Rights Commission Act that allow unions
and other representative groups to
bring a representative complaint to the
Commission.
The Commission also heard that the
damages awarded by courts in sexual
harassment matters were low, especially
when compared with other causes of
action such as defamation. Given the
complexity and importance of this area,
the Commission recommends that further
research be conducted on the award of
damages in sexual harassment matters.
This research should focus on whether
current damages reflect contemporary
understandings of the nature, drivers,
harms and impacts of sexual harassment,
and be used to inform judicial education
and training.
Consistent with its objective of promoting
consistency between the main legislative
schemes, the Commission recommends
that a cost protection provision, consistent
with the Fair Work Act, be introduced into
the Australian Human Rights Commission
Act.
To further support consistency, the
Commission recommends that the
Australian Government work with state
and territory governments, through COAG
or another appropriate forum, to amend
their human rights and anti-discrimination
legislation with the objective of achieving
consistency, where possible, with the Sex
Discrimination Act. Consistency should
be achieved without limiting or reducing
protections.
Finally, a recurring theme that arose
throughout the Inquiry was that, for many
victims, this was the first time they had
told anyone about their experiences.
Given the profound and often devastating
impacts on people affected by workplace
sexual harassment, the Commission
heard that the Inquiry process allowed
people to feel listened to and to have their
experiences acknowledged.
As demonstrated by other inquiries and
restorative engagement processes, there
is a healing power for victims in having
their experiences heard, outside of formal
complaint-handling processes, in a safe
and supportive environment.
Further, the Commission heard that the
risk of a costs order acts as a disincentive
to pursuing sexual harassment matters in
the federal jurisdiction.
Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces • 2020 • 29