The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was recently passed — and signals a significant change in focus of the Sex Discrimination Act 1984.

Multiple law firms welcomed the legislation after it was tabled in Parliament in September — and speaking at the National Press Club on Wednesday (30 November), Ms Jenkins reflected on Australia’s progress in addressing sexual harassment within workplaces and presented results from the fifth national survey on sexual harassment in Australian workplaces.

Progress in Australia

Fifty years ago, Australia was going through “a period of intense activism and enormous social change”, according to Ms Jenkins, who firstly acknowledged “all the people who have experienced discrimination, harassment and inequality”.

“I’m sorry that our laws have failed to protect you. I’ve listened closely, and you have changed me. Together, I believe we can build on the work of those who have come before us and change our country,” she said.  

“I believe right now we’re at a key inflection point in the trajectory of this change. One that fills me with optimism; optimism that if community engagement remains high, and I believe it will, then five years from now, we will see the equality and fairness that our laws are actually designed to bring will have come to life. And you know what? It’s about time.”

In 2017, the #MeToo movement was born amid sexual assault and harassment allegations against Hollywood producer Harvey Weinstein — and following this, Ms Jenkins sought to include data on workplace sexual harassment by industry for the first time in 2018.

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“I’ve been a sexual harassment specialist lawyer for 25 years. But what hit me hardest was hearing the extent to which people’s lives were being ruined by sexual harassment, despite the laws we had. We heard that the system, which relied so heavily on complaints as the primary mechanism to enforce the law and drive behavioural change, was not working,” she explained.  

“We heard that sexual harassment was a systemic, harmful and extremely costly problem, which would require action from everyone, government, employers, communities and individuals if we really wanted to change. What had been achieved over the previous 50 years was very considerable and very significant. But it wasn’t enough.”

What followed was the Respect@Work report being tabled in the Federal Parliament, a number of high-profile cases and events — such as the apology delivered to six former senior associates by Chief Justice of the High Court for sexual harassment by a former High Court judge — and March for Justice protests across the country, all amid a global pandemic.

“I knew my next task was to keep the momentum going. So, the remaining recommendations could become a reality, particularly the positive duty recommendation that was so long overdue. And in May this year, the new Albanese government was elected, carrying the commitment to implement the 55. So that brings me to where we are today, and why I’m so optimistic about change,” Ms Jenkins said.

“The significant reforms made to Safe Work guidance, the sex discrimination, Fair Work and Workplace Gender Equality acts are game-changers in my view; they have the power to transform a response-driven system to one in which employers have their eyes firmly fixed on prevention of sexual harassment and discrimination.

“Until now, employers were only held accountable if a victim of sexual harassment complained and could prove that men had been harassed. It was easy for workplaces to assume that if there were no complaints, there was no harassment. But 20 years of prevalent surveys by the Human Rights Commission tells us a very different story.”

2022 survey results

The majority of Australians (77 per cent) have experienced sexual harassment at some point in their lives, including 89 per cent of women.

The 2022 National Survey on Workplace Sexual Harassment provides a measure of where Australian workplaces are with regard to sexual harassment — at what Ms Jenkins believes is “the next inflection point in our progress towards safer and more respectful workplaces”.

“Disappointingly, since 2018, not much has changed in terms of behaviours in many of our workplaces. A third of Australians still experienced sexual harassment in the workplace, 41 per cent of women and 26 per cent of men, the highest rates of sexual harassment as still young people, LGBTQI+ people, Aboriginal and Torres Strait Islander people and people with disabilities. It’s happening face to face, and online. And most harassment is still perpetuated by men.

“Less than one in five people who’d experienced sexual harassment reported it; so, still way too low. And either they thought it wasn’t serious enough, or it was easy to keep quiet. Of those who did report, 40 per cent said nothing changed. So, we have to learn from this data, because it not only shows that there’s more work to do, but it shows where the work needs to be done,” she said.

“I’m especially worried about how little has changed for our new job insurance. Almost half of workers under 30 have experienced sexual harassment in the last five years. The industries where young people tend to start their working lives, accommodation and food services, retail, and arts and recreation [are] three of the five worst-performing industries in terms of incidents of sexual harassment. So, the survey figures are telling us that in these settings, frankly, things are still not good enough.”

For the first time, this year the survey asked workers how they felt their organisations were dealing with sexual harassment — and whilst almost three-quarters thought their organisations are “genuinely committed” to a workplace free from sexual harassment, only a third had actually attended sexual harassment training.

Approximately two-thirds said their organisation had a sexual harassment policy, whilst half said their organisation provided information on how to report.

“While there’s movement and clearly momentum, a lot of workplaces still need to lift their game, but we’re not at a standing start,” Ms Jenkins added.

“Since 2017, my team has worked with media and entertainment, mining, retail and hospitality, universities, law, sport, finance, defence, police and Border Force. And I’ve seen in these industries a completely new attitude and approach to sexual harassment, bullying and disrespect. Rather than hide it, the best employers want to stop it.”

In a joint statement released on Wednesday (November 30), 

Attorney-General Mark Dreyfus, minister for Women Katy Gallagher and minister for Social Services Amanda Rishworth thanks Ms Jenkins for "her ongoing work in advancing these important issues". 

"We have consistently said that sexual harassment is not inevitable – it is preventable. It is the aim of the Albanese Government to eliminate it from Australian workplaces," they said. 

"We are committed to ending all forms of violence and harassment against women. Our National Plan to End Violence against Women and Children 2022-2032 helps to progress that goal and sets the ambitious task to do that within one generation."

Ms Jenkins also noted that she is already seeing a positive change within Parliament — and a “noticeable shift” over the last five years “from secrecy towards transparency”.

“The work of change is hard, and we need to remember it’s painful for those with lived experience. However, with continued action and vigilance against complacency, I believe our Parliament is well placed to become the safe, respectful and diverse workplace we need it to be,” she added.

“So much is out in the open now in so many of our workplaces. There can be no turning back. So, drawing on the lessons and outcomes of the last 50 years and building on the momentum generated over the last five, I believe we are at a turning point.”