Stanford Erica; Russell DeborahERICA STANFORD (National—East Coast Bays): Thank you Madam Chair. Firstly I just want to offer my congratulations to Dr Deborah Russell for what is a good bill and it was a good process and it was good being on the select committee that scrutinised the bill. I just want to talk about retrospectivity as well and ask the member in charge of the bill if she thinks there might be a potential grey area or problem in the way that we have set out this retrospectivity clause where we say that the sexual harassment action had to have occurred after the commencement of this bill or it had to come to the notice of the person who was enduring the sexual harassment. Now the reason I ask this is because there is a potential situation where someone has been sexually harassed for some time before the commencement of this bill and then again after the commencement of this bill and that person could argue that it only came to their attention because they only realised that it was sexual harassment after the commencement of the bill to bring into line so that they could then work around the retrospectivity clause. Look it may happen or it may not happen but I'm just wanting to know whether or not the member in charge of the bill had thought about that and whether or not taking that a step further it's potentially something for the employer to use against the person to say Well actually the victim is claiming that this happened before. Therefore she knew it was before therefore it is retrospective and therefore the claim can't be brought." and potentially use that as a way out. Has the member thought about that? Is there a potential grey area and are there potential problems? Has she thought that through and how does she think that that might play out? Dr DEBORAH RUSSELL (Labour—New Lynn): Thank you Madam Chair. I thank her for the questions. They're really good ones and they're interesting issues to grapple with. There's a couple of sorts of retrospectivity that the member Erica Stanford has sort of covered in what she's asked. The first is where there is a pattern of behaviour—so a series of events with some of them occurring before the date of the commencement of this bill and some of them occurring afterwards. Now in terms of sexual harassment—claiming and then proving sexual harassment—if there was an incident that happened after the commencement of the bill then that would constitute sexual harassment. The previous events before the commencement of the bill might be evidence to support the claim but the claim itself comes from the very last incident of sexual harassment. So that's the first sort. But the next sort of retrospectivity that might be problematic is where the sexual harassment comes to the notice of a person. This is interesting because we've talked about how with sexual harassment it might sometimes be the case that a person only realises later that it was sexual harassment and it's contemplated in the 365-day nature of this that the pattern really does matter. That's where one off-colour joke probably doesn't matter too much but an off-colour joke every day possibly does or an off-colour joke consistently all the time might constitute sexual harassment of a person—you know it's that sort of thing. The pattern of behaviour does matter and we've talked about how someone can be subject to a pattern of behaviour that they only realise with the passage of time constitutes sexual harassment. But that's not what coming to the notice of a person means—all right? It's not that someone has a road to Damascus moment and suddenly realises that it was sexual harassment. Coming to the notice of a person is when a person is made aware that this sexual harassment has been occurring. I know that that sounds a little odd but think about it this way. It turns out that a person's fellow employees have been sending emails to each other on an ongoing basis discussing the size of her breasts the nature of the clothes she's wearing or whether or not she would be good in bed—all those sorts of things that are sexual harassment. The employee might know that she's terribly uncomfortable in the workplace but not really know why until later it comes to her notice that this series of emails was being passed about. So that's what coming to the notice of a person means. It doesn't mean that they suddenly understand it; it means that the actual events are brought to their attention. So that's the sort of retrospectivity there. In that case they've got to make the complaint within 365 days of when it came to their notice. So that would be perhaps—and I can see how this might happen and it will be for the Employment Relations Authority to sort it out I suppose. But I can see how it could be the case that a person might have been deeply uncomfortable at work and didn't understand what was going on couldn't quite cope left and a while later one of her fellow employees—ex-employees now—contacted her and said "Did you know that there was this series of emails?" That's coming to their notice and that would constitute the sexual harassment that sort of kicked off a series of events. But I'm sure that that's the sort of thing—if that's what's intended—that coming to the notice of a person means. So you can see the two different sorts of retrospectivity and how the bill tries to deal with them. Just in terms of the retrospectivity too we've tried to be very very careful with specifying in the Schedule to the Act as to exactly when the Act takes effect. So it is sexual harassment that occurs or is brought to the notice of a person after the commencement of the Act. ERICA STANFORD (National—East Coast Bays): I just want to follow up on that. The act that has to happen or the sexual harassment act that needs to occur after the bill has come into force—if it is a relatively minor offence and then the worker say quits but all of the sexual harassment up until the point that the bill has passed was very serious is it the same bar for that one act after the bill has passed? What I'm trying to explain is that if the act is relatively minor is it exactly the same test as to whether or not that is sexual harassment or will they take into account all of the events prior to the bill commencing which may have been far more serious? Or is it just the same test as it always is to ascertain whether or not that one act did constitute sexual harassment or will there be a different test for that given that there were a lot more serious acts going on beforehand? Dr DEBORAH RUSSELL (Labour—New Lynn): Thank you Madam Chair. That will in part be something for the Employment Relations Authority to sort out based on their previous judgments that they've made around what constitutes sexual harassment and what doesn't. But I can understand the point the member is making which is: serious event serious event serious event serious event—Erica Stanford: Bill passes. Dr DEBORAH RUSSELL: —the bill passes not so serious event out of the door. That one not so serious event perhaps might not be so serious in itself but as we've discussed previously—and I can't tell how the Employment Relations Authority will take this. But the previous events can constitute a pattern of behaviour which would go to the evidence to support that that last event was itself an act of sexual harassment as well. However that would also be a matter for the Employment Relations Authority to sort out. Clauses 1 to 8 and the Schedule agreed to.Bill to be reported without amendment.House resumed."