A series of legal loopholes that prevent Australia’s public servants – including politicians and judges – from being prosecuted for sexual harassment look like they are finally about to be closed following nearly 40 years on the statute books.
The move comes as Prime Minister Scott Morrison deals with the backlash over his handling of a string of allegations about the mistreatment of women in politics.
On Thursday, Morrison said in a news conference the government plans to amend the Sex Discrimination Act under measures designed to tackle sexual harassment and discrimination in the workplace. He said he hoped to pass the new laws by the end of June.
Morrison said sexual harassment was “immoral and despicable and even criminal,” and “denies Australians, especially women, not just their personal security but their economic security by not being safe at work.”
The changes were recommended in a March 2020 report by Australia’s Sex Discrimination Commissioner, Kate Jenkins. It took the government more than one year to announce amendments to the act.
The push to update the law comes with the country’s political culture under scrutiny following a wave of allegations in the past two months of inappropriate sexual behavior in Parliament, including alleged harassment and rape.
In February a former staffer in Morrison’s ruling Liberal Party said she had been raped in 2019 by a colleague while inside Parliament House in Canberra. Three weeks later, then-Attorney General Christian Porter revealed he had been accused of raping a woman in the late 1980s, which he strongly denied.
Morrison was strongly criticized for his response to the allegations. On March 15, thousands of women across Australia marched in protest to call for an end to violence against women and greater protections against sex crimes
Zali Steggall, an independent federal politician and lawyer, said the proposed changes to the law were a positive step, but she called on the government to make the changes quickly.
“The longer the delay is, the longer the behavior is not caught, and this is not retrospective legislation so it needs to be passed as soon as possible,” she said.
How the loopholes were created
Australia’s Sex Discrimination Act was passed in 1984.
In a review of the law for the UNSW Law Journal on its 20th anniversary in 2004, Australian discrimination law expert Beth Gaze described it as “hesitant and rather ambivalent.”
Gaze told CNN that under the Sex Discrimination Act, politicians and judges are not covered as they don’t fall within the areas of employment where the legislation prohibits discrimination – leaving them outside the protections of the act
Politicians’ staffers are covered under separate employment legislation, Gaze said, which doesn’t include sex discrimination protections.
Legal experts said the loopholes in the law were likely the result of outdated and poorly worded legislation, rather than an attempt to deliberately protect Australian politicians from accusations of sexual harassment.
Federal politician Steggall said the original wording of the 1984 Act had been proscriptive, trying to lay out every type of workplace where discrimination or harassment could occur, rather than issuing a blanket ban. The wording of the legislation led to confusion and gray areas.
The original law “reflected the time in which it was created,” President of the Law Council of Australia, Dr. Jacoba Brasch, said in a statement. “Australian culture and attitudes have moved on, and the SDA needs to be updated to reflect the contemporary expectations of the public,” she said.
Steggall said the loopholes had first been identified during an inquiry in the Australian Senate in 2008 but had taken more than a decade to fix, with blame falling on “all sides of politics for failing to act.”
What’s in the amendments?
Morrison said Thursday he would adopt all 55 of the recommendations made by the commissioner, including a blanket ban on sex discrimination in the workplace and a national survey every four years to check on progress.
The government’s proposed amendments to the Sex Discrimination Act would also make it clearer for employers and employees on what constitutes gender discrimination, and give complainants longer to file.
But despite Morrison’s June timelime, Steggall said she had drafted new laws that were ready to be introduced once Parliament resumes in May.
Her legislation would close the loopholes in the Sex Discrimination Act and sexual harassment in all circumstances, she said. The law would also penalize organizations or political parties that aid or abet in the crime.
Brasch said the success of any legislation introduced by the Morrison government would depend on how the new laws were worded, to erase any “ambiguity” in the legislation and ensure public servants were “personally liable” for sexual harassment.
“(This is) key to ensuring that (the problem) is appropriately addressed, and that problematic conduct does not fall into regulatory gaps,” she said.