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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Sex Discrimination and Fair Work
(Respect at Work) Amendment Bill 2021
No. , 2021
(Attorney-General)
A Bill for an Act to amend the
Fair Work Act 2009
and the
Sex Discrimination Act 1984
, and for other
purposes
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendments
3
Australian Human Rights Commission Act 1986
3
Fair Work Act 2009
3
Sex Discrimination Act 1984
7
Part 2--Application and transitional provisions
21
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
1
A Bill for an Act to amend the
Fair Work Act 2009
1
and the
Sex Discrimination Act 1984
, and for other
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Sex Discrimination and Fair Work (Respect at
6
Work) Amendment Act 2021
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
3
Schedule 1--Amendments
1
Part 1--Amendments
2
Australian Human Rights Commission Act 1986
3
1 Subsection 3(1) (paragraph (e) of the definition of
unlawful
4
discrimination
)
5
Omit "
1975
; or", substitute "
1975
.".
6
2 Subsection 3(1) (paragraph (f) of the definition of
unlawful
7
discrimination
)
8
Repeal the paragraph.
9
3 Paragraph 46PH(1)(b)
10
Repeal the paragraph, substitute:
11
(b) the complaint was lodged:
12
(i) in a case where the complaint relates to the
Sex
13
Discrimination Act 1984
--more than 24 months after
14
the alleged acts, omissions or practices took place; or
15
(ii) in any other case--more than 6 months after the alleged
16
acts, omissions or practices took place;
17
Fair Work Act 2009
18
4 Subsection 9(5B)
19
After "bullied", insert "or sexually harassed".
20
5 Subsection 9(5B)
21
After "bullying", insert "or sexual harassment".
22
6 Section 12
23
Insert:
24
miscarriage
means a spontaneous loss of an embryo or fetus before
25
a period of gestation of 20 weeks.
26
Schedule 1
Amendments
Part 1
Amendments
4
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
sexually harass
has the meaning given by section 28A of the
Sex
1
Discrimination Act 1984
.
2
Note:
Other parts of speech and grammatical forms of "sexually harass" (for
3
example, "sexual harassment") have a corresponding meaning (see
4
section 18A of the
Acts Interpretation Act 1901
).
5
sexually harassed at work
: see subsection 789FD(2A).
6
7 Section 104
7
Before "An employee", insert "(1)".
8
8 At the end of section 104
9
Add:
10
; or (c) the employee, or the employee's spouse or de facto partner,
11
has a miscarriage.
12
(2) Paragraph (1)(c) does not apply:
13
(a) if the miscarriage results in a stillborn child; or
14
(b) to a former spouse, or former de facto partner, of the
15
employee.
16
Note:
For the definition of a
stillborn
child, see subsection 77A(2).
17
9 At the end of subsection 105(1)
18
Add:
19
; or (c) after the employee, or the employee's spouse or de facto
20
partner, has the miscarriage referred to in section 104.
21
10 At the end of section 387
22
Add:
23
Note:
For the purposes of paragraph (a), the following conduct can amount
24
to a valid reason for the dismissal:
25
(a) the person sexually harasses another person; and
26
(b) the person does so in connection with the person's employment.
27
11 Subsection 539(2) (table, subheading relating to Part 6-4B)
28
After "
bullied
", insert "
or sexually harassed
".
29
12 Paragraph 576(1)(q)
30
After "bullied", insert "or sexually harassed".
31
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
5
13 Paragraph 675(2)(j)
1
After "bullied", insert "or sexually harassed".
2
14 Subparagraph 712AA(1)(a)(v)
3
After "bullying", insert "or sexual harassment".
4
15 Part 6-4B (heading)
5
After "
bullied
", insert "
or sexually harassed
".
6
16 Section 789FA
7
After "bullied", insert "or sexually harassed".
8
17 Section 789FA
9
After "bullying", insert "or sexual harassment".
10
18 Division 2 of Part 6-4B (heading)
11
After "
bullied
", insert "
or sexually harassed
".
12
19 Section 789FC (heading)
13
After "
bullying
", insert "
or sexual harassment
".
14
20 Subsection 789FC(1)
15
After "bullied", insert "or sexually harassed".
16
21 Section 789FD (heading)
17
After "
work
", insert "
or
sexually harassed at work
".
18
22 After subsection 789FD(2)
19
Insert:
20
(2A) A worker is
sexually harassed at work
if, while the worker is at
21
work in a constitutionally-covered business, one or more
22
individuals sexually harasses the worker.
23
23 Section 789FF (heading)
24
After "
bullying
", insert "
or sexual harassment
".
25
Schedule 1
Amendments
Part 1
Amendments
6
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
24 Subsection 789FF(1)
1
Repeal the subsection, substitute:
2
(1) If:
3
(a) a worker has made an application under section 789FC; and
4
(b) either or both of the following apply:
5
(i) the FWC is satisfied that the worker has been bullied at
6
work by an individual or a group of individuals, and the
7
FWC is satisfied that there is a risk that the worker will
8
continue to be bullied at work by the individual or
9
group;
10
(ii) the FWC is satisfied that the worker has been sexually
11
harassed at work by one or more individuals, and the
12
FWC is satisfied that there is a risk that the worker will
13
continue to be sexually harassed at work by the
14
individual or individuals;
15
then the FWC may make any order it considers appropriate (other
16
than an order requiring payment of a pecuniary amount) to:
17
(c) if subparagraph (b)(i) applies--prevent the worker from
18
being bullied at work by the individual or group; or
19
(d) if subparagraph (b)(ii) applies--prevent the worker from
20
being sexually harassed at work by the individual or
21
individuals; or
22
(e) if subparagraphs (b)(i) and (ii) apply:
23
(i) prevent the worker from being bullied at work by the
24
individual or group; and
25
(ii) prevent the worker from being sexually harassed at
26
work by the individual or individuals.
27
25 Section 789FG (heading)
28
After "
bullying
", insert "
or sexual harassment
".
29
26 Section 789FH (note)
30
After "bullied", insert "or sexually harassed".
31
27 Section 789FH (note)
32
After "bullying", insert "or sexual harassment".
33
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
7
28 In the appropriate position in Schedule 1
1
Insert:
2
Part 11--Amendments made by the Sex
3
Discrimination and Fair Work (Respect at
4
Work) Amendment Act 2021
5
6
49 Orders to stop bullying
7
Scope
8
(1) This section applies to an order that was in force under
9
subsection 789FF(1) immediately before the commencement of
10
this section.
11
Transitional
12
(2) Despite the repeal of that subsection by the
Sex Discrimination and
13
Fair Work (Respect at Work) Amendment Act 2021
, that subsection
14
continues to apply, in relation to the order, as if that repeal had not
15
happened.
16
50 Orders to stop sexual harassment
17
For the purposes of subparagraph 789FF(1)(b)(ii) (as amended by
18
the
Sex Discrimination and Fair Work (Respect at Work)
19
Amendment Act 2021
), it is immaterial whether the worker has
20
been sexually harassed at work before, at or after the
21
commencement of this section.
22
Sex Discrimination Act 1984
23
29 Title
24
Omit "
or involving sexual harassment
", substitute "
, and relating to
25
discrimination involving sexual harassment and discrimination
26
involving harassment on the ground of sex
".
27
Schedule 1
Amendments
Part 1
Amendments
8
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
30 Paragraph 3(c)
1
After "discrimination involving sexual harassment", insert ", and
2
discrimination involving harassment on the ground of sex,".
3
31 At the end of section 3
4
Add:
5
; and (e) to achieve, so far as practicable, equality of opportunity
6
between men and women.
7
32 Subsection 4(1) (definition of
administrative office
)
8
Repeal the definition.
9
33 Subsection 4(1)
10
Insert:
11
Commonwealth administrative office
means:
12
(a) an office established by, or an appointment made under, a
13
law of the Commonwealth; or
14
(b) an office established by, or an appointment made under, a
15
law of a Territory; or
16
(c) an appointment made by the Governor-General or a Minister
17
otherwise than under a law of the Commonwealth or of a
18
Territory (including the Australian Capital Territory and the
19
Northern Territory); or
20
(d) an appointment as a director of an incorporated company that
21
is a public authority of the Commonwealth;
22
but does not include:
23
(e) an office of member of the Assembly, member of the
24
Executive, or Minister within the meaning of the
Australian
25
Capital Territory (Self-Government) Act 1988
; or
26
(f) an office of member of the Legislative Assembly, member of
27
the Council or Minister of the Territory, within the meaning
28
of the
Northern Territory (Self-Government) Act 1978
; or
29
(g) an office or appointment in the Australian Public Service; or
30
(h) an office of member of either House of the Parliament; or
31
(i) an office of a person employed or engaged under the
32
Members of Parliament (Staff) Act 1984
; or
33
(j) a Commonwealth judicial office.
34
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
9
Note:
A person who holds an office or appointment mentioned in
1
paragraph (g), (h), (i) or (j) is covered by the definition of
2
Commonwealth employee
.
3
34 Subsection 4(1) (paragraph (b) of the definition of
4
Commonwealth employee
)
5
Omit "an administrative office", substitute "a Commonwealth
6
administrative office".
7
35 Subsection 4(1) (at the end of the definition of
8
Commonwealth employee
)
9
Add:
10
; or (g) is a member of either House of the Parliament; or
11
(h) is a person employed or engaged under the
Members of
12
Parliament (Staff) Act 1984
; or
13
(i) is a person who holds a Commonwealth judicial office.
14
Note:
See also section 108.
15
36 Subsection 4(1)
16
Insert:
17
Commonwealth judicial office
means:
18
(a) an office of a Justice of the High Court; or
19
(b) an office of a judge or justice of a court created by the
20
Parliament.
21
37 Subsection 4(1) (at the end of the definition of
22
employment
)
23
Add:
24
; and (d) work as a State employee of a State.
25
Note 1:
Other parts of speech and grammatical forms of "employment" (for
26
example, "employer" and "employee") have a corresponding meaning
27
(see section 18A of the
Acts Interpretation Act 1901
).
28
Note 2:
See also sections 108 (Commonwealth employee) and 109 (State
29
employee).
30
38 Subsection 4(1)
31
Insert:
32
Schedule 1
Amendments
Part 1
Amendments
10
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
harass on the ground of sex
has the meaning given by
1
section 28AA.
2
Note:
Other parts of speech and grammatical forms of "harass on the ground
3
of sex" (for example, "harassment on the ground of sex") have a
4
corresponding meaning (see section 18A of the
Acts Interpretation Act
5
1901
).
6
39 Subsection 4(1) (definition of
instrumentality of a State
)
7
Repeal the definition.
8
40 Subsection 4(1)
9
Insert:
10
Parliament of a State
:
11
(a) in a case where the State is the Australian Capital Territory--
12
means the Legislative Assembly for the Australian Capital
13
Territory; or
14
(b) in a case where the State is the Northern Territory--means
15
the Legislative Assembly of the Northern Territory.
16
person conducting a business or undertaking
has the same
17
meaning as in the
Work Health and Safety Act 2011
.
18
public authority
of a State means:
19
(a) a body that:
20
(i) is incorporated (whether before or after the
21
commencement of this definition) for a public purpose
22
by a law of the State; and
23
(ii) employs staff on its own behalf; or
24
(b) an authority or body that:
25
(i) is not a body corporate; and
26
(ii) is established (whether before or after the
27
commencement of this definition) for a public purpose
28
by, or in accordance with the provisions of, a law of the
29
State; and
30
(iii) employs staff on its own behalf; or
31
(c) an incorporated company over which the State, or a body or
32
authority referred to in paragraph (a) or (b), is in a position to
33
exercise control.
34
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
11
sexually harass
has the meaning given by section 28A.
1
Note:
Other parts of speech and grammatical forms of "sexually harass" (for
2
example, "sexual harassment") have a corresponding meaning (see
3
section 18A of the
Acts Interpretation Act 1901
).
4
State administrative office
of a State means:
5
(a) an office established by, or an appointment made under, a
6
law of the State; or
7
(b) an appointment made by:
8
(i) the Governor of the State; or
9
(ii) the Administrator of the State; or
10
(iii) a Minister of the State;
11
otherwise than under a law of the State; or
12
(c) an appointment as a director of an incorporated company that
13
is a public authority of the State;
14
but does not include:
15
(d) an office or appointment under a law of the State that
16
corresponds to the
Public Service Act 1999
; or
17
(e) an office of member of the Parliament of the State; or
18
(f) an office of a member of the staff of a member of the
19
Parliament of the State; or
20
(g) a State judicial office of the State.
21
Note:
A person who holds an office or appointment mentioned in
22
paragraph (d), (e), (f) or (g) is covered by the definition of
State
23
employee
.
24
State employee
of a State means a person who:
25
(a) is appointed or engaged under a law of the State that
26
corresponds to the
Public Service Act 1999
; or
27
(b) holds a State administrative office of the State; or
28
(c) is employed by a public authority of the State; or
29
(d) is a member of the Parliament of the State; or
30
(e) is a member of the staff of a member of the Parliament of the
31
State; or
32
(f) is a person who holds a State judicial office of the State.
33
Note:
See also section 109.
34
State judicial office
of a State means:
35
Schedule 1
Amendments
Part 1
Amendments
12
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
(a) an office of a judge or justice of a court of the State; or
1
(b) an office of a magistrate of a court of the State.
2
worker
has the same meaning as in the
Work Health and Safety Act
3
2011
.
4
worker in a business or undertaking
has the meaning given by
5
section 28AB.
6
41 Section 8
7
Omit "or section 7A", substitute ", section 7A or subsection 28AA(1)".
8
42 Subsection 9(5)
9
Omit ", 16 and 28B", substitute "and 16".
10
43 Subsection 9(5)
11
Omit ", and sexual harassment of".
12
44 After subsection 9(5)
13
Insert:
14
(5A) Section 28B has effect in relation to sexual harassment, or
15
harassment on the ground of sex, of:
16
(a) Commonwealth employees in connection with their
17
employment as Commonwealth employees; and
18
(b) persons seeking to become Commonwealth employees.
19
45 Subsection 9(6)
20
Omit "Sections 18 and 28C", substitute "Section 18".
21
46 After subsection 9(6)
22
Insert:
23
(6A) Section 28C has effect in relation to sexual harassment, or
24
harassment on the ground of sex, by an authority or body in the
25
exercise of a power under a Commonwealth law to confer, renew,
26
extend, revoke or withdraw an authorisation or qualification.
27
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
13
47 Section 12
1
Repeal the section, substitute:
2
12 Crown to be bound
3
(1) This Act binds the Crown in each of its capacities.
4
(2) This Act does not make the Crown liable to be prosecuted for an
5
offence.
6
48 Section 13
7
Repeal the section.
8
49 Part II (at the end of the heading)
9
Add "
etc.
".
10
50 Subsection 21(4)
11
Repeal the subsection.
12
51 Subsection 22(1)
13
Omit "(1)".
14
52 Subsection 22(2)
15
Repeal the subsection.
16
53 Subsection 23(4)
17
Repeal the subsection.
18
54 Subsection 24(3)
19
Repeal the subsection.
20
55 Subsection 26(1)
21
Omit "(1)".
22
56 Subsection 26(2)
23
Repeal the subsection.
24
Schedule 1
Amendments
Part 1
Amendments
14
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
57 Subsection 27(3)
1
Repeal the subsection.
2
58 Division 3 of Part II (heading)
3
Omit "
Sexual harassment
", substitute "
Harassment etc.
".
4
59 Subsection 28A(1)
5
Omit "For the purposes of this Division", substitute "For the purposes
6
of this Act".
7
60 After section 28A
8
Insert:
9
28AA Meaning of
harassment on the ground of sex
10
(1) For the purposes of this Act, a person harasses another person (the
11
person harassed
) on the ground of sex if:
12
(a) by reason of:
13
(i) the sex of the person harassed; or
14
(ii) a characteristic that appertains generally to persons of
15
the sex of the person harassed; or
16
(iii) a characteristic that is generally imputed to persons of
17
the sex of the person harassed;
18
the person engages in unwelcome conduct of a seriously
19
demeaning nature in relation to the person harassed; and
20
(b) the person does so in circumstances in which a reasonable
21
person, having regard to all the circumstances, would have
22
anticipated the possibility that the person harassed would be
23
offended, humiliated or intimidated.
24
Note:
See also section 8 (acts done for 2 or more reasons).
25
(2) For the purposes of subsection (1), the circumstances to be taken
26
into account include, but are not limited to, the following:
27
(a) the sex, age, sexual orientation, gender identity, intersex
28
status, marital or relationship status, religious belief, race,
29
colour, or national or ethnic origin, of the person harassed;
30
(b) the relationship between the person harassed and the person
31
who engaged in the conduct;
32
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
15
(c) any disability of the person harassed;
1
(d) any power imbalance in the relationship between the person
2
harassed and the person who engaged in the conduct;
3
(e) the seriousness of the conduct;
4
(f) whether the conduct has been repeated;
5
(g) any other relevant circumstance.
6
(3) In this section:
7
conduct
includes making a statement to a person, or in the
8
presence of a person, whether the statement is made orally or in
9
writing.
10
28AB Meaning of
worker in a business or undertaking
11
For the purposes of this Act, if a person (the
first person
) is a
12
worker because the first person carries out work for a person
13
conducting a business or undertaking, the first person is a worker
14
in the business or undertaking.
15
61 Subsection 28B(1)
16
After "sexually harass", insert "or harass on the ground of sex".
17
62 Subsection 28B(2)
18
After "sexually harass", insert ", or harass on the ground of sex,".
19
63 Subsections 28B(3) to (7)
20
Repeal the subsections, substitute:
21
(3) It is unlawful for a person conducting a business or undertaking to
22
sexually harass, or harass on the ground of sex:
23
(a) a worker in the business or undertaking; or
24
(b) a person who is seeking to become a worker in the business
25
or undertaking.
26
(4) It is unlawful for a worker in a business or undertaking to sexually
27
harass, or harass on the ground of sex:
28
(a) a fellow worker; or
29
(b) a person who is seeking to become a worker in the business
30
or undertaking.
31
Schedule 1
Amendments
Part 1
Amendments
16
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
(5) It is unlawful for a person (the
first person
) who is:
1
(a) a worker; or
2
(b) a person conducting a business or undertaking;
3
to sexually harass, or harass on the ground of sex, a person if the
4
harassment occurs in connection with the first person being:
5
(c) a worker; or
6
(d) a person conducting a business or undertaking.
7
(6) It is unlawful for a person to sexually harass, or harass on the
8
ground of sex, a person (the
second person
) who is:
9
(a) a worker; or
10
(b) a person conducting a business or undertaking;
11
if the harassment occurs in connection with the second person
12
being:
13
(c) a worker; or
14
(d) a person conducting a business or undertaking.
15
(7) It is unlawful for a person (the
first person
) who is:
16
(a) an employee; or
17
(b) an employer;
18
to sexually harass, or harass on the ground of sex, a person if the
19
harassment occurs in connection with the first person being:
20
(c) an employee; or
21
(d) an employer.
22
(8) It is unlawful for a person to sexually harass, or harass on the
23
ground of sex, a person (the
second person
) who is:
24
(a) an employee; or
25
(b) an employer;
26
if the harassment occurs in connection with the second person
27
being:
28
(c) an employee; or
29
(d) an employer.
30
64 Subsection 28C(1)
31
After "sexually harass", insert ", or harass on the ground of sex,".
32
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
17
65 Section 28D
1
After "sexually harass", insert ", or harass on the ground of sex,".
2
66 Section 28E
3
After "sexually harass", insert ", or harass on the ground of sex,".
4
67 Subsections 28F(1) and (2)
5
After "sexually harass", insert "or harass on the ground of sex".
6
68 Subsection 28F(2A)
7
After "sexually harass", insert ", or harass on the ground of sex,".
8
69 Subsection 28F(2A)
9
After "sexual harassment", insert ", or harassment on the ground of
10
sex,".
11
70 Subsection 28F(2B)
12
After "sexually harass", insert "or harass on the ground of sex".
13
71 Subsection 28F(2B)
14
After "sexual harassment", insert ", or harassment on the ground of
15
sex,".
16
72 Subsections 28G(1) and (2)
17
After "sexually harass", insert ", or harass on the ground of sex,".
18
73 Subsection 28H(1)
19
After "sexually harass", insert ", or harass on the ground of sex,".
20
74 Section 28J
21
After "sexually harass", insert ", or harass on the ground of sex,".
22
75 Section 28K
23
After "sexually harass", insert ", or harass on the ground of sex,".
24
76 Section 28L
25
After "sexually harass", insert ", or harass on the ground of sex,".
26
Schedule 1
Amendments
Part 1
Amendments
18
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
77 At the end of Part II
1
Add:
2
Division 5--Victimisation
3
47A Victimisation
4
(1) It is unlawful for a person to commit an act of victimisation against
5
another person.
6
Note 1:
See also section 94 (offence of victimisation).
7
Note 2:
See also the definition of
unlawful discrimination
in the
Australian
8
Human Rights Commission Act 1986
.
9
(2) For the purposes of subsection (1), a person (the
first person
)
10
commits an act of victimisation against another person if the first
11
person subjects, or threatens to subject, the other person to any
12
detriment on the ground that the other person:
13
(a) has made, or proposes to make, a complaint under this Act or
14
the
Australian Human Rights Commission Act 1986
; or
15
(b) has brought, or proposes to bring, proceedings under this Act
16
or the
Australian Human Rights Commission Act 1986
17
against any person; or
18
(c) has given, or proposes to give, any information, or has
19
produced, or proposes to produce, any documents to a person
20
exercising or performing any power or function under this
21
Act or the
Australian Human Rights Commission Act 1986
;
22
or
23
(d) has attended, or proposes to attend, a conference held under
24
this Act or the
Australian Human Rights Commission Act
25
1986
; or
26
(e) has appeared, or proposes to appear, as a witness in a
27
proceeding under this Act or the
Australian Human Rights
28
Commission Act 1986
; or
29
(f) has reasonably asserted, or proposes to assert, any rights of
30
the person or the rights of any other person under this Act or
31
the
Australian Human Rights Commission Act 1986
; or
32
(g) has made an allegation that a person has done an act that is
33
unlawful by reason of a provision of this Part (other than
34
subsection (1));
35
Amendments
Schedule 1
Amendments
Part 1
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
19
or on the ground that the first person believes that the other person
1
has done, or proposes to do, an act or thing referred to in any of
2
paragraphs (a) to (g), inclusive.
3
(3) In a proceeding for a contravention of subsection (1) constituted by
4
subjecting, or threatening to subject, a person to a detriment on the
5
ground that the person has made an allegation that another person
6
had done an act that was unlawful by reason of a provision of this
7
Part (other than subsection (1)), it is a defence if it is proved that
8
the allegation was false and was not made in good faith.
9
78 Paragraph 48(1)(g)
10
Omit "or to discrimination involving sexual harassment".
11
79 After paragraph 48(1)(g)
12
Insert:
13
(gaaa) on its own initiative or when requested by the Minister, to
14
report to the Minister as to the laws that should be made by
15
the Parliament, or action that should be taken by the
16
Commonwealth, on matters relating to discrimination
17
involving:
18
(i) sexual harassment; or
19
(ii) harassment on the ground of sex;
20
80 Paragraph 48(1)(ga)
21
Omit "and discrimination involving sexual harassment".
22
81 After paragraph 48(1)(ga)
23
Insert:
24
(gaa) to prepare, and to publish in such manner as the Commission
25
considers appropriate, guidelines for the avoidance of
26
discrimination involving:
27
(i) sexual harassment; or
28
(ii) harassment on the ground of sex;
29
82 Paragraph 48(1)(gb)
30
Omit "or discrimination involving sexual harassment".
31
Schedule 1
Amendments
Part 1
Amendments
20
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
83 After paragraph 48(1)(gb)
1
Insert:
2
(gc) where the Commission considers it appropriate to do so, with
3
the leave of the court hearing the proceedings and subject to
4
any conditions imposed by the court, to intervene in
5
proceedings that involve issues of discrimination involving:
6
(i) sexual harassment; or
7
(ii) harassment on the ground of sex;
8
84 Subsection 94(1)
9
Omit "victimization", substitute "victimisation".
10
85 Subsection 94(2)
11
Omit "victimization", substitute "victimisation".
12
86 Section 105
13
Omit "or 2", substitute ", 2 or 3".
14
87 After section 108
15
Insert:
16
109 State taken to be employer
17
For the purposes of this Act, a State employee of a State is taken to
18
be employed by the State.
19
Amendments
Schedule 1
Application and transitional provisions
Part 2
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
21
Part 2--Application and transitional provisions
1
88 Application
--pre-commencement acts of victimisation
2
For the purposes of subsection 47A(1) of the
Sex Discrimination Act
3
1984
(as amended by this Schedule):
4
(a) it is immaterial whether the act was committed before, at or
5
after the commencement of this item; and
6
(b) so far as that subsection relates to an act committed before
7
the commencement of this item, that subsection is modified
8
by inserting ", and is taken to have been unlawful," after
9
"unlawful".
10
89 Transitional
--pre-commencement acts of victimisation
11
(1)
Despite the amendments of the definition of
unlawful discrimination
in
12
subsection 3(1) of the
Australian Human Rights Commission Act 1986
13
made by this Schedule, paragraph (f) of that definition continues to
14
apply, in relation to conduct that was engaged in before the
15
commencement of this item, as if those amendments had not been
16
made.
17
(2)
After the commencement of this item, a person is not entitled to lodge a
18
complaint with the Australian Human Rights Commission under
19
section 46P of the
Australian Human Rights Commission Act 1986
20
alleging that one or more acts committed before the commencement of
21
this item are unlawful discrimination because they amount to conduct
22
that is an offence under section 94 of the
Sex Discrimination Act 1984
.
23
(3)
If:
24
(a) before the commencement of this item, a person lodged a
25
complaint with the Australian Human Rights Commission
26
under section 46P of the
Australian Human Rights
27
Commission Act 1986
alleging that one or more acts are
28
unlawful discrimination because they amount to conduct that
29
is an offence under section 94 of the
Sex Discrimination Act
30
1984
; and
31
(b) the complaint has not been terminated under section 46PH of
32
the
Australian Human Rights Commission Act 1986
;
33
Schedule 1
Amendments
Part 2
Application and transitional provisions
22
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
No. , 2021
then:
1
(c) the President of the Australian Human Rights Commission
2
may, by writing, declare that the
Australian Human Rights
3
Commission Act 1986
has effect, after the commencement of
4
this item, as if the complaint had alleged that those acts are
5
unlawful under section 47A of the
Sex Discrimination Act
6
1984
(as amended by this Schedule); and
7
(d) if such a declaration is made--the President:
8
(i) may amend the complaint for the purposes of giving
9
effect to the declaration; and
10
(ii) must give a copy of the declaration to the person; and
11
(e) if the President amends the complaint--the President must
12
give a copy of the amended complaint to the person.
13
(4)
A declaration under subitem (3) is not a legislative instrument.
14
(5)
Subsections 19(2) and (2A) of the
Australian Human Rights
15
Commission Act 1986
(which deal with delegation) have effect as if this
16
item were a provision of Part IIB of that Act.
17
90 Transitional
--pre-commencement sexual harassment
18
Despite the amendments of section 28B of the
Sex Discrimination Act
19
1984
made by this Schedule, that section continues to apply, in relation
20
to conduct that was engaged in before the commencement of this item,
21
as if those amendments had not been made.
22
91 Transitional
--guidelines
23
Scope
24
(1)
This item applies if, immediately before the commencement of this
25
item, guidelines relating to sexual harassment were in force under
26
paragraph 48(1)(ga) of the
Sex Discrimination Act 1984
.
27
Transitional
28
(2)
The guidelines have effect, after the commencement of this item, as if
29
they had been made under paragraph 48(1)(gaa) of the
Sex
30
Discrimination Act 1984
(as amended by this Schedule).
31
Amendments
Schedule 1
Application and transitional provisions
Part 2
No. , 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill
2021
23
92 Transitional
--proceedings
1
Scope
2
(1)
This item applies if, before the commencement of this item, a court
3
granted leave under paragraph 48(1)(gb) of the
Sex Discrimination Act
4
1984
for the Australian Human Rights Commission to intervene in
5
proceedings involving issues relating to sexual harassment.
6
Transitional
7
(2)
Despite the amendment of paragraph 48(1)(gb) of the
Sex
8
Discrimination Act 1984
made by this Schedule, that paragraph
9
continues to apply, in relation to those proceedings, as if that
10
amendment had not been made.
11
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