Making politicians and judges subject to the Sex Discrimination Act (SDA) was not among the 55 recommendations in last year’s landmark Respect @ Work report into sexual harassment. But this week, it formed the centrepiece of the federal government’s long-awaited response.
Unveiling that response, 15 months after receiving the “Respect @ Work: National Inquiry into Sexual Harassment in Australian Workplaces” report from Sex Discrimination Commissioner Kate Jenkins, Prime Minister Scott Morrison insisted the events of the past two months in federal politics had not dictated how the government decided to act.
“There is no doubt that the events of recent months have … reinforced the significance [of this issue] and highlighted it once again and the frustration that I think that is felt,” Morrison said. “But I think the response itself is reflective of our principles as a government and our values as a government.”
However, the focus on MPs and judges in the government’s response suggests the political drama involving historical rape allegations, and last year’s revelations about alleged sexual harassment at the High Court, have had considerable influence. Exactly how the SDA will apply to judges and MPs is unclear and penalties will not include dismissal. Nevertheless the government is keen to address suggestions of one rule for them and another for everyone else.
Morrison and newly appointed Attorney-General Michaelia Cash committed the government to accepting most of the recommendations in Jenkins’ 900-page report.
“Sexual harassment is unacceptable,” Morrison said. “It’s not only immoral and despicable and even criminal, but particularly in the context of the Respect @ Work report, it denies Australians, especially women, not just their personal security but their economic security by not being safe at work.”
Aside from legislative and other changes, Morrison said Australians needed to talk more about what was – and was not – acceptable behaviour, including the difference between flirting and harassment.
“I think that’s the sort of conversation that we have to have in our relationships, in our communities, in our homes, in our clubs, in our churches, wherever you happen to be,” he said. Sometimes, he said, the behaviour was unconscious.
“I think people will happily change their behaviour if they were aware that some of their unconscious acts could be leading to that sense of hurt or dismissal with their fellow Australians,” he said. “In other cases, it’s malevolent. In other cases, it’s predatory. In other cases, it’s violent and I think those lines are a lot clearer and I think what we’re doing here today brings further force to deal particularly with those types of behaviours.”
Morrison said the problem always began with disrespect.
“I would argue not just disrespect towards women. Disrespect, full stop. We’ve got to be careful in our society that we don’t allow the reservoir of respect to drain, and I fear it is.”
Cash said the government’s key policy objective was to simplify the law around sexual harassment so Australians could better understand and access it.
That’s the rationale the government gives for rejecting some of the report’s recommendations, including to amend the SDA to explicitly prohibit sexual harassment. It argues other legislation contains adequate provisions.
It has also not accepted, at this stage, Jenkins’ recommendation to expressly prohibit “creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex”, nor to expand the act’s definition of workers to include volunteers and self-employed people. It also won’t legislate that “substantive” gender equality is an objective. But it will extend the SDA’s reach to include state public servants.
“Our response is focused on prevention,” Minister for Women Marise Payne told Sky News on Thursday. “It is focused on having a system that is simple to access.”
But the government has also rejected the report’s proposal that the onus be placed on employers to take steps to prevent sexual harassment in the workplace.
It has, however, agreed to further clarify in law that employers have the power to fire people for engaging in sexual harassment. To assist this, the government will amend an existing “stop bullying order” to clarify that it also applies to sexual harassment – without creating a whole new order, as recommended – and amend the Fair Work Act to include harassment as “serious misconduct”.
But the government’s response has only noted, and not agreed to, recommendations to require business to report to the Australian Stock Exchange on steps being taken to address diversity, gender equality and sexual harassment. The hesitation appears to reflect the Coalition’s traditional reluctance to regulate the private sector.
Likewise, it has not committed to requiring private sector industry bodies to provide particular education and training for employers or to conduct surveys, run awareness campaigns or introduce specific policies to address the issues.
Rather, the government will encourage the private sector to engage with the Respect @ Work council, which it established last year to oversee steps to eliminate harassment.
It will consult the states and territories on streamlining the law nationally, and has promised to “consider” extra funding for various measure, stopping short of a full commitment.
Establishing the council was one of nine of Jenkins’ recommendations accepted initially and outlined in the Women’s Economic Security Statement within last year’s federal budget, delayed by the Covid-19 pandemic until October and criticised as very “blokey”.
Opposition leader Anthony Albanese issued a joint statement with Labor frontbenchers Tanya Plibersek and Mark Dreyfus, tentatively welcoming the Respect @ Work response. “We need to see what actions the government will actually take, and what funding they will actually provide,” they said. “We sincerely hope that the announcements made today will lead to lasting, positive change for Australian women. It is long overdue.”
Independent MP Zali Steggall has a private member’s bill before parliament that incorporates many of the changes the government is now embracing.
Steggall noted Morrison’s call for multi-party support and said the fastest way to implement the changes would be to simply endorse her bill.
“We need action, not words,” she said. “There is already a blueprint on the table.”
But governments tend to want to draft their own legal changes, and Cash has promised legislation by June.
The Australian Greens, who also have a bill prepared, “cautiously welcomed” the response. “The devil will be in the detail, and in the funding provided to support creating safe workplaces,” Greens senate leader Larissa Waters said. They are further calling for a code of conduct covering parliamentarians and their staff.
The Law Council of Australia produced a sexual harassment policy for the legal profession last year following the harassment allegations levelled at former High Court judge Dyson Heydon. This week it praised the government’s pledge to introduce legislative amendments to ensure the SDA reflected “modern expectations”, though noting this was still “lacking in some detail”.
The government’s moves followed the first meeting on Tuesday of the prime minister’s newly minted women’s cabinet taskforce. Scott Morrison co-chaired the meeting with Payne, whom he recently dubbed the “prime minister for women”.
Morrison’s cabinet has seven female members – a record for an Australian federal cabinet – all of whom are on the taskforce, along with the prime minister, Treasurer Josh Frydenberg, Deputy Prime Minister and Nationals leader Michael McCormack and Finance Minister Simon Birmingham. Assistant ministers Jane Hume and Amanda Stoker are also members, having specific new portfolio responsibilities for women.
The Nationals’ only female minister, Michelle Landry, was not invited to the taskforce meeting, despite being assistant minister for Families. Nor was the only other woman in the ministry, assistant minister for Regional Development Nola Marino, whose desk featured recently in photos of a masturbatory act that saw a former staffer sacked.
Also this week, Minister for Women’s Safety Anne Ruston convened talks with her state and territory counterparts to discuss a national plan to eliminate violence against women and children, already in development.
Ruston announced on Wednesday that the government would convene a two-day national summit on women’s safety on July 29.
In the short term, the federal government is focused on its women’s economic statement in this year’s May budget, emphasising employment. Payne said preparations were focused on identifying “gaps” in existing programs. The statement is also expected to highlight superannuation.
Recently the government proposed and then quietly dumped a policy that would have allowed victims of family violence early access to their super, after support networks argued it could put women subject to coercive control at greater risk.
Asked this week what was the greatest priority for women, Payne said it was “difficult to split hairs” between safety and economic security. But she said inappropriate behaviour towards women must not go unchallenged.
“The behaviour of perpetrators must be called to account, and we absolutely acknowledge that here in our own workplace,” Payne told 2GB on Tuesday.
Payne, who is from the moderate wing of the Liberal Party, was asked about her newly appointed assistant minister for Women, the conservative senator Amanda Stoker, who has offered controversial views on the rights of perpetrators. In a brief and understated response, Payne said she worked well with the Queensland senator.
Stoker has become embroiled in a public row with Australian of the Year Grace Tame, who criticised her past endorsement of controversial men’s rights commentator Bettina Arndt.
Arndt undertook what she called a “fake rape crisis” tour of university campuses in 2018 to highlight what she suggested was the feminist fiction of campus rape involving young women making false allegations.
“There is no rape crisis,” Arndt said on the webpage she used to raise money for her tour. “Universities across the country chose to kowtow to a tiny group of feminist activists rather than celebrate our safe campuses.”
In the senate last year, Stoker defended Arndt against calls that she be stripped of her Order of Australia, for public comments in which she blamed female victims for the violence they experienced. Among those victims was the late Hannah Clarke, murdered with her three children in a Brisbane firebombing attack by her estranged husband. Arndt suggested Clarke may have “driven” the man to violence.
Grace Tame particularly criticised Arndt for offering a public platform to the man who groomed and raped the then 15-year-old Tame repeatedly when he was a teacher at her school. Arndt conducted a sympathetic 2017 on-camera interview with him, posted online, suggesting men were vulnerable to “provocative” girls.
Tame posted comments on social media criticising Stoker’s recent ministerial appointment, pointing to her public support for Arndt’s campus tour in the context of free speech. This week, Stoker described Tame’s criticisms as “utter nonsense”.
“In my time as a senator, I have really strongly tried to explain the deep harm that comes from the practice of de-platforming and that’s the idea that some perspectives – that are legal – that are different points of view, should be denied the opportunity to be spoken and be heard, particularly in universities, because they might offend people,” she said.
On radio, Marise Payne was also asked what she thought of Grace Tame. That response was effusive. “Her advocacy on preventing violence against women and children is so important for us,” she said.
Likewise, the advocacy of governments – even if they took a while to get there.
This article was first published in the print edition of The Saturday Paper on April 10, 2021 as "Earning respect".
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