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‘More to be done’ on fixing a broken legal system
The recent National Inquiry into Sexual Harassment in Australian Workplaces shows much more needs to be done to prevent sexual harassment in the workplace, says the Law Council of Australia.
Tony Zhang
The recent landmark inquiry by the Australian Human Rights Commission (AHRC) into sexual harassment in Australian workplaces concluded the current legal system was “simply no longer fit for purpose”.
Law Council of Australia President Pauline Wright supports, in principle, the AHRC’s recommendations for a new legal and regulatory model.
“Amending state and territory human rights and anti-discrimination legislation to achieve consistency between sexual harassment laws throughout Australia and simplifying the messaging of what is sexual harassment is a step towards addressing that difficulty,” Ms Wright said.
“We fully endorse the report’s recommendation to introduce a positive duty to eliminate sex discrimination, sexual harassment and victimisation.
"However, we believe that separate duties to respond to allegations of sexual harassment and to report all such allegations to an independent statutory body should be considered.”
Most sexual harassment complaints are resolved confidentially at the Australian Human Rights Commission (AHRC) or its local equivalents, yet very few go to court.
The AHRC found persistent problems in sexual harassment in the workplace that stems from a “broken” legal system.
Making a legal claim can be complex and costly. A victim who has been sexually harassed could use their local anti-discrimination law or the federal system.
The federal system, however, is also costly because if the victim loses at court not only will they have to pay their own legal costs, they would also risk having to pay the other side’s costs too.
The LCA noted that while there are services providing assistance to navigate these challenges, such as community legal centres and legal aid commissions, high demand and under-resourcing limit access to these services.
“Legal advice and representation should be available to all victims of sexual harassment navigating legal and external complaint processes,” Ms Wright said.
“Legal aid commissions and community legal centres should be adequately funded to enable them to provide quality advice and representation in sexual harassment matters.”
Discussion on sexual harassment in the legal profession has ramped up lately.
Recently, the Legal Services Commissioner John McKenzie, has vowed to start making changes through the introduction of a sexual harassment platform for the legal profession.
Furthermore, former High Court Justice Susan Crennan discussed the institutional bias she faced as a woman in the legal profession at an International Women’s Day breakfast.
The report has set out the recommendation of amending the Sex Discrimination Act to require employers to take “reasonable and proportionate measures” to eliminate sexual harassment and discrimination, in what is called “positive duty”.
It has also recommended the liability for sexual harassment be extended to those who “aid or permit” another person to sexually harass a person.
The LCA has fully endorsed the report’s recommendations and has urged to expand the probation of sexual harassment to cover all areas of public life.
“Expanding the prohibition of sexual harassment to protect any person performing work to include unpaid or self-employed workers will be a step forward,” Ms Wright said.
“But we believe the prohibition on sexual harassment should be expanded to cover all areas of public life.
“This expansion would deal with the inconsistent coverage of current legislation in relation to workplace sexual harassment and also provide an important message on how sexual harassment is viewed.”
