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Committee Secretary Senate Education and Employment Committees PO Box 6100 Parliament House Canberra ACT 2600 via email: eec.sen@aph.gov.au 12 July 2021 Addressing Harassment as Systemic Discrimination: Realising CEDAW’s Promise of Substantive Equality Submission to Inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 Helen Pringle Senior Lecturer, Faculty of Arts, Design & Architecture UNSW Sydney, Australia Monika Zalnieriute Senior Lecturer and Australian Research Council DECRA Fellow Faculty of Law and Justice UNSW Sydney, Australia Australian Human Rights Institute, UNSW Sydney Sandra Amankaviciute PhD Researcher, Faculty of Arts, Design & Architecture, and Australian Human Rights Institute, UNSW Sydney, Australia 1 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39 About this Submission We welcome the opportunity to make a submission to this inquiry as scholars and researchers with expertise in anti-discrimination law and policy, human rights law and feminist theory at UNSW Sydney.
We limit our submission to consideration of the changes proposed by the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 [the Bill]1 to the Sex Discrimination Act 1984 (Cth) [SDA].2 The views expressed are our own, not those of UNSW Sydney or any other institution.

Harassment is endemic in Australian workplaces, alongside limited community understanding of either its gravity or its pervasiveness.
3 Sexual and sex-based harassment are frequently (mis)understood as simply inappropriate behaviour rather than as part of a wider structural discrimination against women, thereby undermining its seriousness.
4 We therefore welcome Government acknowledgement of the systemic nature of harassment and of the need for social and legal change to create ‘a new culture of respectful behaviour in Australian workplaces.’5 However, the proposed changes in the Bill are not enough to recognise and address harassment as a form of systemic discrimination against women, nor to realise the broader promise of women’s rights and substantive equality as set out in the Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW].6 We appreciate that the changes proposed under the Bill are limited to workplace settings, not designed to reform the SDA as a whole.
However, systemic and structural social harms, such as harassment and other forms of discrimination against women, require systemic and structural changes.

They should not be addressed via piecemeal legislative amendments limited to certain areas of public life.
Our submission emphasises the 1 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, First Reading, https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s1306_first- senate/toc_pdf/2108920.pdf;fileType=application%2Fpdf.

2 Sex Discrimination Act 1984 (Cth), https://www.legislation.gov.au/Details/C2018C00499.
3 Respect@Work: Sexual Harassment National Inquiry Report (2020), https://humanrights.gov.au/our- work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020.

4 Helen Pringle, ‘The Making of Women’s Un-freedom: Sexual Harassment as Harm’ in Freedom Fallacy: The Limits of Liberal Feminism ed.

Miranda Kiraly and Meagan Tyler (Ballarat: Connor Court, 2015) 69–79.
5 Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian https://www.ag.gov.au/sites/default/files/2021-04/roadmap-respect-preventing- Workplaces addressing-sexual-harassment-australian-workplaces.pdf.

6 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations Treaty Series, Vol.

1249, p. 13.
1249, p. 13.

(2021), 2 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39 importance of a holistic approach in addressing harassment as a systemic problem, as part of wider structural discrimination against women.
We make three main recommendations, all of which would align the SDA more closely with CEDAW and other anti-discrimination acts: • • • the proposed amendments and SDA Objects should not be limited by a qualification of “practicability”; the scope of the SDA should not be restricted to certain areas of public life; the proposed amendments to SDA should explicitly recognise and address that the creation of a ‘sexually hostile’ environment at work or in other public places is a form of harassment.

1.
1.

The Proposed Amendments and SDA Should Not be Qualified by ‘Practicability’ Considerations We first recommend that to cement Government acknowledgement of the pervasiveness of harassment and of the systemic nature of discrimination against women in legislation, the phrase ‘so far as is possible’ in the SDA Preamble and Objects clause should be removed, and that the amending Bill’s proposal to add the phrase ‘so far as practicable’ should also be rejected.
In particular, the Preamble to the SDA in its present form recognises … the need to prohibit, so far as is possible, discrimination against people on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities… [emphasis added] Similarly, the Objects clause of the SDA states that the Act aims … to eliminate, so far as is possible, discrimination against persons on the ground of sex… [emphasis added] The caveat ‘so far as is possible’ is also repeated in the present SDA Objects clause concerning discrimination on the ground of family responsibilities in the area of work (3(ba)) and ‘discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity’ (3(c)).
The Bill proposes amending the Objects clause with a similar qualification, as also explained in in the Explanatory Memorandum to the Bill: 3 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39 6.

This Bill would create a new object clause to make it clear that in addition to the elimination of discrimination and harassment, the SD Act aims to achieve, so far as practicable, equality of opportunity between men and women [emphases added].
We note that neither the Preamble and Objects clause of the SDA, nor the proposed changes under the Bill, reflect the vision of substantive equality between women and men,7 as conveyed in CEDAW; and moreover, are not in line with other Commonwealth anti-discrimination acts.
In stark contrast to a merely aspirational approach signalled by the qualifications of ‘so far as possible’ and ‘so far as practicable’, CEDAW aims to eliminate … any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (Article 1) [emphasis added].
The width of the term ‘discrimination’ as used in CEDAW reflects the vision of substantive equality between men and women, which is not qualified by considerations of ‘practicability’ or limited by references to ‘equality of opportunity’.

Moreover, the qualifications of ‘so far as is possible’ in the SDA or of ‘practicability’ in the Bill are not used in all other anti-discrimination measures.
For example, neither qualification is mentioned in the Racial Discrimination Act 1975 (Cth) [RDA],8 the archetype of Commonwealth legislation in the area of discrimination and equality.

In sum, the use of phrases such as ‘so far as is possible’ or ‘so far as practicable’ constrains the force of the SDA to a level of limited aspiration rather than requiring state commitment and action towards substantive equality between men and women.
The proposed amendment under the Bill should therefore simply state that ‘the SDA aims to achieve substantive equality between men and women’, with no qualification.
Any other references to ‘so far as is possible’ in the SDA should also be removed.9 7 On the meaning and significance of the distinction between substantive and formal equality in this context, see Catharine A. MacKinnon, ‘Equality’ Daedalus 149.1 (2020), 213–221; Catharine A. MacKinnon and Kimberlé W. Crenshaw, ‘Reconstituting the Future: An Equality Amendment’ Yale Law Journal (2019) 343–364; and Catharine A. MacKinnon, ‘Substantive Equality: A Perspective’ Minnesota Law Review 96 (2011) 1–27.
8 Racial Discrimination Act 1975 (Cth), https://www.legislation.gov.au/Details/C2016C00089.

9 We also support the removal of such qualifications from any other anti-discrimination legislation in which they remain.

4 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39 2.
The Scope of the SDA Should Not be Limited to Certain Areas of Public Life Second, while we welcome the Bill’s proposed inclusion of state public servants, members of parliament and judges, as well as additional professional categories, such as sub-contractors, interns and volunteers, under SDA anti-harassment provisions, we believe that simply adding more categories to the SDA’s list is not an effective way to address the prevalence of harassment as part of systemic discrimination against women.
The expanded list of persons and professional relationships, as proposed under the Bill, still suggests that women are legitimate targets of harassment in some areas of public life while not in others.

This proposed change also fails to recognise how forms of harassment in different areas of public life are connected to each other on a continuum.
To recognise the systemic nature of harassment and its role in wider structural discrimination against women, all areas of public life should be subject to the legal prohibition of harassment.
As noted above, the Preamble and Objects clause of SDA both state that the aim of the Act is to prohibit or eliminate, … so far as is possible, discrimination against persons … in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; … [emphasis added].
In contrast to this confinement of the scope of the SDA to only certain areas of public life, CEDAW envisions substantive equality between men and women ‘in the political, economic, social, cultural, civil or any other field’ (Article 1) [emphasis added].
Similarly, the Racial Discrimination Act makes no such restriction on its scope, and instead specifies that It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life (Section 9(1) [emphasis added].
We recommend that the SDA’s scope reflect the RDA’s coverage of all fields of public life, with no restriction to certain spaces as in its present form.
To this end, we propose the insertion in the SDA of a similar paragraph as in the RDA, taking the following form: It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on sex which has the purpose or effect of nullifying or impairing the 5 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39 recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
3.

The Systemic Objectification and Sexualisation of Women: Discrimination at Work and Other Areas of Public Life Third, to address systemic harassment, we recommend that the Bill explicitly mentions the display and use of sexually explicit material, including pornography, in the workplace as constituting a sexually hostile environment for women at work (and, in line with our holistic approach, under the SDA, in any other areas of public life as well).
Such reform is crucially needed to address the structural nature of discrimination against women, because the display and use of sexually explicit material, including pornography, are part of a wider phenomenon of objectification and sexualisation of women in the public sphere.
10 Hyper-sexualised and objectifying displays of women (and girls) humiliate women, which is linked to common mental health problems such as eating disorders, low self-esteem, and depression in women and girls.11 Such displays are also a form of systemic discrimination, which marks out public spaces as a male domain, in which women are mere objects and their voices are frequently subject to derision and mockery.
12 In the context of employment, it has long been accepted in various state tribunals that the display and use of pornography in the workplace can form an environment itself amounting to sexual discrimination.

For example, in the case of Horne v Press Clough Joint Venture, decided in 1994, the WA Equal Opportunity Tribunal noted, It is now well established that one of the conditions of employment is quiet enjoyment of it.
That concept includes not only freedom from physical intrusion or from being harassed, physically molested or approached in an unwelcome manner, but extends to not having to work in an unsought sexually permeated work environment.
An employer who requires an 10 Sandra Amankaviciute, Helen Pringle and Monika Zalnieriute, ‘Freedom of Expression of Women in the Public Sphere: From Objectification to Technology Facilitated Sexual Violence’ Submission to the Thematic Report for the 76th Session of the General Assembly (2021), https://papers.ssrn.com/abstract id=3866497#.

11 American Psychological Association, Report of the APA Task Force on the Sexualization of Girls (2008), https://www.apa.org/pi/women/programs/girls/report.
12 Sandra Amankaviciute, Helen Pringle and Monika Zalnieriute, ‘Freedom of Expression of Women in the Public Sphere: From Objectification to Technology Facilitated Sexual Violence’ Submission to the Thematic Report for the 76th Session of the General Assembly 2021, https://papers.ssrn.com/abstract id=3866497#.
6 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39 employee to work in such an environment is subjecting the employee to a detriment and may be held to be unlawfully discriminating against that employee.13 The Tribunal held that ‘quiet enjoyment of employment’ requires an employer to ensure a workplace without the display of ‘sexually explicit or implicit cartoons, display [of] photographs of naked women or men, and publications featuring such photographs or containing other lewd or sexually suggestive printed material’.14 We recommend the explicit clarification in the Bill that the display or use of sexually explicit material, including pornography, can create a sexually hostile environment for women that undermines their equal enjoyment of work, or activities any other areas of public life.
4.

Conclusion Our recommendations in this submission focus on the Bill’s proposed amendments to the SDA.

We argued that the scope of SDA should not be limited by “practicability” considerations or restricted to only certain areas or public life.
We also recommended that proposed amendments under the Bill should explicitly recognise that the creation of a ‘sexually hostile’ environment at work or in other areas of public life, through sexually explicit material and pornography for example, is a form of harassment, and part of wider structural discrimination against women.

We believe that these revisions would also have a significant impact on public attitudes and practices towards harassment and discrimination against women.
Bringing the Object clauses and provisions of the SDA and the RDA into symmetry would render sex discrimination of equal seriousness to racial discrimination, throughout public life.

The changes we propose would enable clarification and a better understanding of a systemic nature of harassment and its discriminatory effects throughout the Australian community.

13 Horne v Press Clough Joint Venture [1994] EOC 92-591 at 77, 175.
14 Horne v Press Clough Joint Venture [1994] EOC 92-591, at 77, 175, quoting Bennett v Everitt (1988) EOC 92- 244, at 77, 280.

See also Mount Isa Mines Limited v Hopper [1998] QSC 287 (17 December 1998).

7 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 39