National Press Club Address: Changing Laws, Changing Behaviours, Changing Lives

Speech by Australia's National Sex Discrimination Commissioner, Kate Jenkins, to the National Press Club on 30 November, 2022.  

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Acknowledgments

Thank you, Laura, for that kind introduction, and thank you to the National Press Club for having me today.

I want to begin by acknowledging the traditional owners of the land on which we meet - the Ngunnawal-Ngambri people - and pay my respects to their elders past, present and future.

I also acknowledge and pay tribute to my colleague, Commissioner June Oscar, who in her landmark project, Wiyi Yani U Thangani, has elevated the voices of Aboriginal and Torres Strait Islander women and girls.

I want to acknowledge all the people who have experienced discrimination, harassment and inequality. I am sorry our laws have failed to protect you.

I have 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.

And I want to acknowledge my mother, who is here today with my husband Ken, for passing down to me, through her DNA and through her and my father’s values, my deep commitment to fairness, equality… and the Carlton Football Club! 

I’ll be talking about sex discrimination and sexual harassment today and this can cause discomfort and distress. If my speech creates those feelings for you, please take care of yourself as you need. For example, if you need to take some time out from this space, there is a quiet room you can head to upstairs. You can also seek support by calling 1800-RESPECT and find information about supports and your rights on the respectatwork.gov.au website.

Introduction

Six years ago, I was appointed as Australia’s 7^th Sex Discrimination Commissioner.

I was the first employment lawyer in the role, and as the majority of complaints to the Commission relate to employment, this seemed like a good fit.

One of my first tasks – day three into the job, actually – was to come here, to the National Press Club, and outline what I wanted to achieve.

I remember feeling a bit nervous.

I was a seasoned employment lawyer.  I’d served as Victoria’s Equal Opportunity and Human Rights Commissioner.  I wasn’t new to public speaking. And I was relatively used to the media.

But I knew that the media were absolutely critical to the work of change. And in this, you bear an important responsibility.

I talked then about what had inspired me. 

The early fights for equality that made young women like me believe we had bright futures and an equal chance… in a world where everything was possible… where things had really changed, particularly for women.

I spoke about the impact on me and others of the first sex discrimination case to reach the High Court. A pilot named Deborah Lawrie, who took on Ansett Airlines and its powerful owner Reg Ansett, when they refused to let a woman fly their planes.   

It was 1979.  I had just turned 11.  And Deborah Lawrie won her case.

In that first speech, I outlined my priorities:

• address gender-based discrimination and violence, in all its forms;
• work to improve women’s economic security; and
• pursue diversity in leadership.

In 2016, many of the critical foundations needed to protect people from sexual harassment and sex discrimination, and to advance gender equality, they were already in place.  

We had legislative frameworks. We had policies.

Now… I’ve never been a lawyer’s lawyer. I’m a practical person.

My motivation in taking this role was to bring the law to life for everyone it was intended to help; to harness those laws and policies we had and create sharper, workable practices and focused actions that would change people’s behaviours.

To do that, we needed not just the support and engagement of legislators, policymakers, courts and HR departments.

We needed everyone to engage.  We needed everyone to care.

So... we had to reach people where they lived, worked, played and learned.

Because this is where discriminatory behaviours are learned and perpetuated, but also where new norms can be adopted.

Where behaviours can change.

The Change the Story framework calls these places – ‘high impact settings for change’.  And I planned to focus: on Workplaces; on Education and - because this is Australia -on Sport.

Six and a half years later, I’m coming close to the end of my Term as Commissioner - and it has been a huge privilege.

Today, I want to offer some reflections on where we are now, in terms of gender equality and sexual harassment in Australia, and where I believe we’re going next.

To do this, I’m going to touch down briefly at three points in time:

50 years ago… 5 years ago… and today.   

To show why I believe right now we are 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 5 years from now, we will see that 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!

50 years ago

50 years ago was a period of intense activism and enormous social change… particularly for women.

As Wendy McCarthy recently reminded me, one of the biggest springboards for women’s advancement was progress made in reproductive rights.

The contraceptive pill arrived in 1961, and a decade later the Whitlam government removed the ‘luxury’ tax it carried and listed the Pill on the PBS. Women from all socio-economic groups could now avoid unwanted pregnancy and they could plan for parenthood.

Of course, education was another major cornerstone of women’s advancement. And that didn’t happen overnight either. In 1950, less than 1 in 5 University students were women.  By 1980 it was closer to half. (45%.^[1])

As women flocked to paid work, critical workplace rights were enshrined in policy and legislation, and they remain today.  1972 was a particularly big year for reform. There was progress on equal pay, childcare, paid maternity leave and pregnancy discrimination.

But it was clear we needed laws.   Binding laws that could protect people from a whole range of discriminatory behaviours and unfair, systemic practices.

The Women’s Electoral Lobby was set up in 1972 to influence government, public policy and public institutions. The late, great and very honourable Susan Ryan was a founding member and she and this group helped to create and maintain the massive momentum needed to withstand the heavy tide of history.

Luckily for me, Susan was Age and Disability Discrimination Commissioner when I joined the Human Rights Commission in 2016.

Ever generous with her time, she told me the challenges she’d faced … the abuse she’d endured… and the pragmatic compromises she’d made to get the Sex Discrimination Act over the line in 1984.

Susan was my inspiration for developing the traits I’ve applied every day, in this role - patience, pragmatism and persistence.

One thing that surprised and really disappointed her, was that,  even decades after introduction of the Sex Discrimination Act, there was still no direct requirement for employers to comply with the Act as she had originally envisaged.

She felt the lack of an employer duty - a “positive duty” - in the Act was unfinished business.   But more on that later.

Over those 50+ years then, we had made some really significant progress in addressing discrimination and gender inequality.

And when you look at what drove that progress??

• There had been periods of very broad community engagement, from everyone, including men;
• Advocacy was highly strategic and evidence-based; and
• There was real, political commitment; and
• As a result, we saw a range of profound legal, policy and social changes - that are still in place today.

Sounding familiar…?

5 years ago

I’m going to jump forward now to Thursday, October 5, 2017.

I’d been in the job for about a year and half and my team and I had been working hard along the lines we had mapped out.

But for me that was the day everything changed. 

In a way that was both profound and fundamental to what has happened since.

I stepped off an overnight international flight home and - as you do - turned my phone on. It lit up like a Christmas tree.

The New York Times had just published its explosive report on Hollywood producer, Harvey Weinstein. Shocking allegations of abuse, assault, harassment and serious cover ups - going back decades.

Now - Hollywood is a very long way from here.  But in the days, weeks and months that followed, it became clear that something had changed in Australia.

The ‘conversation’ about sexual harassment underwent a seismic shift.

From a reluctant but resigned acceptance that this kind of behaviour (this kind of abuse), was an undesirable, but somehow inevitable part of the working environment… to a sharper and angrier realisation.  That these behaviours were not and should never be considered inevitable.   And they had to stop.

Enter… hashtag MeToo.

The MeToo movement hit Australia like a tsunami, as it did many other countries.

People were angry.  They started talking…and talking.  Openly sharing their experiences of sexual harassment, fear, frustration and inequality.

Like many others in leadership positions, I knew instantly we had to respond to this mood change.  And quickly.  This was the moment to jump into the riptide… and go with it.

We immediately sought support from Government to expand our 2018 National Survey on Workplace Sexual Harassment to include data by industry, for the first time.  In 2018, I reported on those results in my second address to this room. And shortly I’ll share with you some of the 2022 Survey results, which we released today.

I also advocated to Government for us - as the national human rights institution - to conduct a much deeper examination into workplace sexual harassment.

The former Minister for Women, Kelly O’Dwyer and then-Prime-Minister Malcolm Turnbull, offered support including a useful analysis of the economic impact of sexual harassment.  

Spoiler alert - it was costing the nation a fortune.

Our 18-month-long comprehensive Inquiry examined the nature, prevalence, impact and cost of sexual harassment in our workplaces.

I‘d 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.

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 things to change.

What had been achieved over the previous 50 years was very considerable… and very significant  But it was not enough.

I believe, as a society, we had allowed the momentum built up over the 60s, 70s and 80s... to slowly… ebb… away.

I believe we had relied too heavily on the system - laws, complaints, HR departments, courts, tribunals - to do all the work for us.

Because… the behaviours?

Well, it seemed they hadn’t improved much at all.

Throughout our Inquiry, there was one theme that rose up… again and again… as we listened to and learned from people’s lived experience of the nation’s workplaces…

A universal desire…. not just to feel and be safe at work…. but to be treated with respect.  

Respect.

So that’s what we called it.

Respect@Work Report

Our Respect@Work Report, with its 55 recommendations, was tabled in Federal Parliament on the fifth of March 2020.

It was a proud day for me and my team.  But it was also the last day Federal Parliament sat before COVID-19 swept the country.

We had a Report. We had 55 carefully considered recommendations. 

But we still had to land the plane.  And I had to draw on all my reserves of persistence, pragmatism and patience.

As it turned out, the MeToo movement was unstoppable, even in the face of a Pandemic.

Sexual harassment and gender inequality remained major topics in the national conversation. In fact, they were fuelled and amplified by wave after wave of single events and pivotal moments.

Just a few:

• The apology delivered to six former associates by the Chief Justice of the High Court for sexual harassment by a former High Court judge;
• The backlash from AMP staff and shareholders that has changed expectations of CEOs and boards around sexual harassment;
• Australian of the Year Grace Tame introduced her mantra “Let’s Make Some Noise” and inspired others;
• Chanel Contos called for young people to share their school-age experiences of sexual harassment and assault.
• And there have been other high-profile^[2]
• And across the country, the March4Justice protests drew hundreds of thousands into the streets, with placards, like my favourite that said #implementthe55.  A clear expression of the national desire for a fundamental change in attitude and for action.

The amount of new and meaningful discussion and action that’s taken place since the day the New York Times published has been remarkable.

With community expectations now very high in April last year the Morrison government responded to all 55 recommendations in our Respect@Work Report and implementation work began, in earnest including:

• legislating half the statutory recommendations we made;
• establishing the Respect@Work Council.

I knew my next task was to keep the momentum going so the remaining recommendations could become reality, particularly the Positive Duty recommendation that was so long overdue.

And in May this year, the new Albanese government was elected, carrying a commitment to: ’Implement the 55’.

So, that brings me to where we are today, and why I’m so optimistic for change.

Now

Now, like we saw 50 years ago, in a climate of high community expectations and community demand, we’re seeing big changes to laws and policies to advance respect and equality in the workplace. Credit here to the Minister for Women Katy Gallagher and the Minister for Employment and Workplace Relations Tony Burke for their work.

Backed by clever advocacy and a strong evidence base, the 55 Respect@Work recommendations are funded and many are well – progressed under the leadership of the past and current Attorney and the Department.

The significant reforms made to Safe Work guidance and the Sex Discrimination Act, Fair Work Act and Workplace Gender Equality Act 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 they’d been harassed. It was easy for workplaces to assume that, if there were no complaints, there was no harassment.  But 20 years of prevalence surveys tell a very different story.

Because of the laws stewarded though Parliament by the Attorney Mark Dreyfus and passed on Monday. employers will now have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment. Measures that can work for big corporates and for the smallest of enterprises.

These laws are not being introduced in isolation. Earlier this month we launched the RESPECTATWORK.GOV.AU website. A central source of free information and accessible practical resources providing clear guidance - for employers and individuals. With contributions from across the Respect@Work Council members, it includes the most current expertise, with more to come as employers ready themselves for their new duties. It even includes new media reporting guidelines launched by Minister Rishworth and Our Watch today.

And - today - we have updated data.

2022 Survey

I’m pleased today to launch the results of the 2022 National Survey on Workplace Sexual Harassment. The Report – Time for Respect - is now up on our website.

We called it Time for Respect, because after five decades, and now particularly after the last five years… isn’t it time for respect?

The results provide a measure of where Australian workplaces are with regard to sexual harassment, precisely at what I believe is the next inflection point in our progress toward safer and more respectful workplaces. 

It shows us where we are now - after the anger, activism and action of the last five years - and where we can get to if we use the tools we now have at our disposal. 

• newly updated laws;
• new educational initiatives;
• new supports;
• new resources; and
• new attitudes.

All the improvements recommended by the Respect@Work report are there to help and if we use them, and use them wisely, over the next five years Respect will become “business as usual”, just ‘how we do things’.

That’s my vision.

Disappointingly since 2018 not much has changed in terms of behaviours in many of our workplaces:

• A third of Australian workers still experience sexual harassment in the workplace. (41% of women, 26% of men.)
• The highest rates of sexual harassment are still young people, LGBTQI+ people, Aboriginal and Torres Strait Islander peoples and people with disabilities.
• It’s happening face to face and online, and most harassment is still perpetrated by men (77%).
• Less than 1 in 5 people who experienced sexual harassment reported it (still way too low).
• Either they thought it wasn’t serious enough, or it was easier to keep quiet or some other reason.
• Of those who did report it to their employer, 40% said nothing changed.

We must learn from this data, because it shows us not only that there’s still work to do, but where that work needs to be done.

I am especially worried at how little has changed for new job entrants. Almost half of workers under 30 have experienced sexual harassment over the last 5 years.

The industries where young people tend to start their working lives are:

• accommodation and food service,
• retail, and
• arts and recreation

These are three of the five worst-performing sectors in terms of incidences of sexual harassment.

So, the Survey figures are telling us that in these settings frankly, things are still not good.

To support the needs of young workers, the Commission has created tailored training, now accessible (for free), on the www.respectatwork.gov.au website.

It’s why I’ve focused my attention on university and school students, including co-leading a survey project on sexual harassment and consent education in schools with the National Children’s Commissioner Anne Hollonds (who’s here today) and with the support of Chanel Contos (who is also here).

This year, for the first time we asked workers how they felt their organisations were dealing with sexual harassment. Employers will find their answers illuminating.

The good news is that almost three quarters of workers think their organisations are genuinely committed to a workplace free from sexual harassment:

The bad news is that:

• Only a third had attended training on sexual harassment;
• Only around two-thirds of workers said their organisation has a sexual harassment policy; and
• Only half said their organisation provided information to workers about how to make a report.

The promising news is that almost half of workers said their line managers had shown leadership in preventing and responding to sexual harassment (47%). I want to see more of that.

So while there is movement, and clearly momentum, a lot of workplaces still need to lift their game!  But we’re not at a standing start…

I’ve talked about the Respect@Work reforms. I’ve talked about the Survey results. Now I want to talk about workplaces.

Maintaining the momentum

Given the systemic nature of sexual harassment, one of our recommendations was to support industries to address sexual harassment. And since 2017, my team have worked with: media and entertainment, mining, retail and hospitality, universities, law, sport, finance, defence, police and border force. 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.

Personally, the change I’m witnessing in our Parliament, gives me great hope.

A year ago today, our Independent Review of Commonwealth Parliamentary Workplaces report, ‘Set the Standard’ was tabled in Parliament.

It was a privilege to lead that Review and hear the experiences of more than 1700 participants. The Parliament committed to all 28 recommendations, and I am inspired by the real action I see there.

Just yesterday, I met with the Cross Parliamentary Leadership Taskforce that are leading and overseeing the reforms and I am pleased that many of its members are here today, as well as other parliamentarians. Yesterday the Joint Select Committee on Parliamentary Standards released their report on proposed new behaviour standards and codes for the parliament.

And this morning, the Presiding Officers, Speaker Milton Dick and President Sue Lines, made opening statements declaring their leadership commitment and marking the 1year anniversary in both the House and the Senate. They spoke about setting the standard for all workplaces. I was present in the House for that statement this morning and I will attend Question Time in the Senate this afternoon.

But what inspires me most, is what I hear when I visit Parliament House. Quiet comments, made in passing….before and after meetings… in lifts and corridors… from political staffers, journalists and departmental staff… ‘Thank you for the work you’re doing. It is making this a better place.’

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. So, these were the kinds of high impact settings for change we needed to reach. And I’m pleased to say we got to quite a few over my term as Commissioner.

Secrecy

The Harvey Weinstein saga (and the many others like it) have shone a very bright light on the toxicity of silence…on how secrecy can perpetuate abuse. I’ve seen a notable shift over the last 5 years from secrecy towards transparency.

The Respect@Work Council will soon release federal guidance recommending the limited use of confidentiality clauses in sexual harassment settlement agreements.

We know workplaces are safer and risks are reduced when organisations share and use industry data, trend analysis and de-identified statistics. Pay gap reporting and a ban on pay secrecy are also welcome developments. 

So much is out in the open now…. in so many of our workplaces… there can be no turning back.

Conclusion

So drawing on the lessons and outcomes of the last 50 years and building on the momentum generated over the last 5 years, we are at a turning point.

As I said earlier, I think our progress in tackling sex discrimination, harassment and gender equality slowed right down because we relied too much on the system to deliver the change we wanted. We did not understand that it is up to us all.

We relied too heavily on the courage of victims to step into the brutal and lonely glare of the spotlight to enforce the law.

We cannot allow that to continue. 

It is too painful, too damaging, too expensive. 

But above all, it is not fair and it is not respectful.

We have a roadmap now. A future that includes positive duty in workplaces and a society that is demanding transparency, accountability and action.

Clearly, the job is not yet done. And I will continue to contribute wherever I can after I leave the Commission next April. I will still be pragmatic.  I will always persist.   But, as for being patient?? The time for patience is over.

I want to see people’s lives improve... 

For women - for people of all genders - I want them to be given the respect and equality they deserve.

The time for change is now. 

We’ve done the work and the planning. We have the legal and policy changes in place. We are developing resources and tools. We have media attention, and our politicians are engaged.

We have possibly the highest level of community-wide awareness on these issues since the ‘60s and 70s.

We have motivated employers and workers, and the next generation is coming through with high expectations. We all have a role to play.

So, let’s just get this done!

We need more courageous leaders so that fewer survivors are forced to speak out because the system has failed them.

We need trauma-informed systems in which people feel safe to speak up, knowing they will be listened to with compassion, and supported.

We need to make space for more diverse voices.

And four years from now… when the results of the next national survey on sexual harassment in workplaces come out, I want to see the outcomes of change… reflected in the data.

Telling us that: the Laws have been effective… behaviours have changed… and workplaces and lives are better for it.

Postscript

About a month ago, I decided to track down Flight Captain Deborah Lawrie. Remember her?

I’d never met her before, actually. We caught up for a coffee and we talked for two hours.  

She is incredible.  In 2020, she celebrated fifty years of flying aircraft. She was inducted into the Australian Aviation Hall of Fame. 

She still works as a pilot today.

She’s still flying.

Thank you.

 

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