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Queensland Government Bulletin

12 April 2021


Published by:

Queensland Government Bulletin

Sexual harassment – not just an issue for the ‘Canberra bubble’

The recent controversy over alleged sexual assault and sexual harassment within the “Canberra bubble” has dominated the news over recent weeks.

Prime Minister Scott Morrison has committed to introducing legislation to implement recommendations put forward by Sex Discrimination Commissioner, Kate Jenkin, in the Respect@Work: Sexual Harassment National Inquiry Report (Respect@Work Report) here on the National Inquiry into Sexual Harassment in Australian Workplaces.

He has also indicated the intention to extend the Federal Sex Discrimination Act (1984) (SDA) scope to encompass judges and MPs, and will also seek to have state public servants included.

Particular changes the Federal Government has now flagged include:

  • enabling stop-harassment orders 
  • amending the SDA to expressly prohibit sex-based harassment
  • amending the Fair Work Act to "clarify" that sexual harassment can provide a valid reason for dismissal
  • amending the Fair Work Regulations to include sexual harassment within the definition of "serious misconduct".

While state employees working conditions in Queensland are regulated under the Industrial Relations Act 2016, The Public Service Act 2008, the Anti-Discrimination Act 1991 and various other state legislation, the Commonwealth’s changes will have direct impacts on our public servants.

Sexual harassment is a work health and safety issue

The Respect@Work Report recommends a shift from the current "reactive" approach to sexual harassment to a "proactive" model.

That means all employers will be required to take positive action to prevent harassment from occurring.

In principle, this is the same preventative obligation that employers have regarding workplace accidents and workplaces will be required to formally recognise workplace sexual harassment as a work health and safety (WHS) issue.

Safe Work Australia

On 27 January 2021, Safe Work Australia (SWA) released new national guidance on preventing and responding to workplace sexual harassment (Guide).

SWA is an Australian government statutory body established in 2008 to develop national policy relating to WHS and workers’ compensation.

They are jointly funded by the Commonwealth, state and territory governments through an Intergovernmental Agreement and work to drive national policy development on WHS and workers’ compensation matters.

The new Guide specifically characterises sexual harassment as a workplace hazard, which is known to cause psychological and physical risks to health and safety.

The Queensland Government, which is by far the largest employer in the State, has the same obligations under the Work Health Safety Act 2011 (QLD) (WHS Act) as any other employer or person conducting a business or undertaking (PCBU).

Under the WHS Act, PCBUs have a duty to eliminate or minimise such risks so far as is reasonably practicable.

In recognition of this, the new Guide sets out the familiar WHS risk management process (identifying and assessing, implementing control measures, and regularly reviewing control measures to ensure ongoing effectiveness) and applies it to the issue of sexual harassment.

In a sign of the times, the SWA also highlight that the risk of sexual harassment still exists, and can even be more significant, for those working remotely. A point that the COVID-19 pandemic has made particularly relevant.

The Guide notes that where work is performed remotely from home, this can provide an opportunity for covert sexual harassment to occur, either online or by phone without the ‘buffer’ zone of easy communication of other work colleagues.  

What can sexual harassment look like in the workplace?

The new Guide sets out a WHS perspective on the types of actions and incidents that can constitute sexual harassment in the workplace. It is defined as any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

Sexual harassment can include: 

  • unwelcome touching, hugging, cornering or kissing
  • inappropriate staring or leering
  • suggestive comments or jokes
  • using suggestive or sexualised nicknames for co-workers
  • sexually explicit pictures, posters or gifts
  • circulating sexually explicit material 
  • persistent unwanted invitations to go out on dates
  • requests or pressure for sex
  • intrusive questions or comments about a person's private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • insults or taunts based on sex
  • sexual gestures or indecent exposure
  • following, watching or loitering nearby another person
  • sexually explicit or indecent physical contact
  • sexually explicit or indecent emails, phone calls, text messages or online interactions
  • repeated or inappropriate advances online
  • threatening to share intimate images or film without consent
  • actual or attempted rape or sexual assault.

Sexual harassment is not always obvious, repeated or continuous. Unlike bullying, which is characterised by repeated behaviour, sexual harassment can be a one-off incident.

Sexual harassment can also be a behaviour that, while not directed at a particular person, affects someone who is exposed to it or witnesses it (such as overhearing a conversation or seeing sexually explicit posters in the workplace). 

With such a broad definition and the inherently ‘subjective’ nature of a lot of the identified behaviours (i.e. claims from the subject officer that “I thought she/he was ‘interested’ or ‘flirting’”) means that the only way for a state government employer to effectively discharge the obligation as a PCBU is to implement and rigorously enforce clear ‘red lines’. Workplaces should set clear cultural guidelines of what is and what is not acceptable. Having set out clearly what is required, employers should then implement preventative measures which workers and management are both aware of and fully understand.  

Risk identification and control measures

The Guide broadly sets out a number of steps that PCBUs can take to identify risks of sexual harassment, including:

  • assessing employees’ physical working environments – for example, incidents can occur undetected in areas where there is limited natural surveillance or of close physical interaction
  • assessing the online working environment. The use of social media for work purposes and the culture of how workers generally interact with one another and with third parties online can result in increased hazards
  • specifically considering work systems and practices to identify risks of exposure to sexual harassment – for example, where workers perform after-hours work, work in restrictive spaces or work in isolated or remote locations, or are required to have regular contact with third parties such as customers, clients or suppliers
  • assessing workplace culture, including by observing or by conducting anonymous worker surveys.

Utilising the standard WHS process, the Guide then recommends a proactive approach to managing risks of sexual harassment by implementing control measures, such as:

  • taking measures to provide safe physical and online working environments – these could include ensuring the layout of workplaces provide good visibility, installing CCTV systems and informing workers of this, producing and enforcing workplace guidelines for online conduct
  • providing safe work systems and procedures – these could include increased or even mandated supervision, ‘check-ins’ and documented communication with workers (particularly when working remotely or from home), and reinforcing workplace policies and expected behaviours for work-related social events
  • implementing workplace policies that set clear expectations about workplace behaviours and providing regular training to all workers, including managers
  • encouraging workers to report sexual harassment and making sure that safe, confidential and clear avenues for them to do so exist, are well known and being proactive in ensuring that both complaints and subject officers are supported during and resultant investigation process.

What should state government employers do?

State government workplaces can be stressful environments, with high-pressure stakes, high staff turnover and constantly changing circumstances.  

That means it is essential that control measures for sexual harassment are regularly audited and re-communicated to the workforce.

Generally speaking, the responsible officers in state government workplaces should:

  • regularly review workplace behaviour and WHS policies, and current workplace practices, to genuinely ensure that risks of workplace sexual harassment are identified and addressed as far as possible
  • officers tasked with risk management should be under no illusions. Their obligations extend to workplace sexual harassment now and these obligations are likely to be under further scrutiny in the future
  • ensure all workers are fully aware of and understand their department’s policies and their rights and obligations in respect of sexual harassment. Safety management systems only work if the workforce is fully engaged in the system
  • given the growing prevalence of remote working, ensure that all workplaces are included in such reviews and that the issue is canvassed with remote workers who should be fully aware of what is and what is not acceptable either online or in the real world
  • ensure that internal reporting processes are capturing accurate and timely information about incidents that can be used to improve systems.

This Queensland Government has done much to promote and police safer workplaces across the state and there is now a growing recognition of the hazard that sexual harassment presents to workers and the extent of the damage it can cause.

To a large extent, the legislative framework to prevent sexual harassment already exists and a ‘tweak’ in mindset to treat the risk of sexual harassment in the same way as ‘traditional’ workplace risks such as tripping hazards, overhead powerlines, working at heights or even potential physical assaults from members of the public, can make a real difference in preventing life-changing injuries in our workplaces.

Author: Edmund Burke

In the media

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LCA: Government recognises need for cultural change to sexual harassment laws
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DTA renews MOU with AIIA
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Own Motion Investigation into Services Australia’s Income Compliance Program: A report about Services Australia’s implementation of changes to the program in 2019 and 2020
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LCA: A national response to family, domestic and sexual violence is needed
LCA says many of the report’s 88 recommendations aim to address the insidious and ubiquitous problem of family violence on a national level, but it is disappointing that the report did not consider or call for additional funding for the courts to adequately address family violence in the justice system (06 April 2021).  More...

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Comcare guide to beat workplace harassment
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Queensland's animal welfare laws under review
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Appointment to the Family Court of Australia
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Reappointment of Sex Discrimination Commissioner and Age Discrimination Commissioner
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Appointment to the Federal Circuit Court of Australia
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In practice and courts

Law Council of Australia Submissions
31 March 2021— Law Council.   More...

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AustLII cyber law on the map
AustLII has announced the upcoming launch of the Cyber Law Map, an annotated guide to Australian cyber-related legislation and case law which is intended to be an evolving wiki categorising cyber law and case information. The non-commercial venture is to be launched on 25 March and will be freely available.  More...

AHRC: Independent review into Commonwealth parliamentary workplaces
The Commission will not be investigating nor making findings about individual allegations of bullying, sexual harassment or sexual assault as part of the Review.  The Commission will report on its findings and recommendations in a report to be tabled in Parliament in November 2021. The Terms of Reference outline the scope of the Review in more detail. More...

OAIC: Independent review of the Credit Reporting Code
In April 2021, the Australian Information Commissioner and Privacy Commissioner will tender for an independent review of the Privacy (Credit Reporting) Code 2014 (the CR Code). This review is an opportunity to explore how the CR Code is operating in practice.  More...

OAIC submissions and reports
Digital Advertising Services Inquiry – Interim Report
1 April 2021 - Digital Advertising Services Inquiry – Interim Report.  More...

OAIC: Independent review of the Credit Reporting Code
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OAIC: Our FOI disclosure log
The information described in our disclosure log has been released by the OAIC under the Freedom of Information Act 1982 (FOI Act): updated 08 April 2021.  More...

ANAO Consultations
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LSC: Regulation of litigation funding schemes
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Finance and Public Administration Legislation Committee
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Operation and management of the Department of Parliamentary Services On 22 February 2021, the reporting date was extended to 19 May 2021

Legal and Constitutional Affairs Legislation Committee
Judges’ Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020  report by 5 April 2021


Supreme Court - Queensland Courts are open and hearing cases 01 Apr 2021
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Filing court documents, QEII Courts of Law 30 Mar 2021
Protocol for Applications in the Supreme Court commencing 30 March 2021 until further notice 29 Mar 202

QAO Publications

Risk of underpayment of payroll
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Responsibilities of ministers and public servants regarding grants
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Bills and papers
Queensland Law Reform Commission: A legal framework for voluntary assisted dying—Review update, February 2021 | Qld
Due to the size and complexity of the Commission’s task, the reporting date was altered to 10 May 2021

Queensland Law Reform Commission Consultation Paper – a legal framework for voluntary assisted dying
The Queensland Law Reform Commission is seeking feedback on the Consultation Paper “A legal framework for voluntary assisted dying”. The Consultation Paper explores a legal framework for voluntary assisted dying.. For more information please see the consultation page and the terms of referenceNote: The Commission continues to work hard on this review, and hopes to meet a reporting date of 10 May 2021. This document is intended to inform the public about the Commission’s task and its processes, and how it hopes to complete the review by 10 May 2021.

Department of the Premier and Cabinet Consultation

Annual report 2019-20 feedback survey
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Published - articles, papers, reports

The University of Queensland Law Journal Vol. 40 No. 1 (2021):
Part of the Future’: Family Law, Children’s Interests and Remote Proceedings in Australia during COVID-19
Felicity Bell
Corrective Justice and Redress under Australia’s Racial Vilification Laws - Bill Swannie
Judicial Activism and Constitutional (Mis)Interpretation: A Critical Appraisal
Johnny M Sakr and Augusto Zimmermann.  More...

PGPA Newsletter 66
Published Date 01 April 2021.  More...

New tech applications for regulatory outcomes: occasional paper
ACMA: 30 March 2021
The paper highlights research showing Australia is third in the world for the number of Regulatory Technology (RegTech) providers based in the country, only behind the USA and UK.  More...

Own Motion Investigation into Services Australia’s Income Compliance Program
Commonwealth Ombudsman: 06 April 2021
The report makes nine recommendations focusing on communication, remediation of debts, reviews of debts, and possible future activities. The report also makes seven additional comments where the issues raised no longer require action but provide lessons for the future.  More...

Administration of Parliamentary Expenses by the Independent Parliamentary Expenses Authority
ANAO No 33: 29 March 2021
The objective of this audit was to assess the efficiency and effectiveness of the Independent Parliamentary Expenses Authority’s administration of parliamentary expenses.  More...

What’s really at stake with vaccine passports
Elizabeth Renieris, Centre for International Governance Innovation: 05 April 2021
In this article, the author suggests that rather than thinking about vaccine passports as temporary and isolated public health-related measures, we should view them as just one example of how the pandemic is accelerating the rollout of digital identity infrastructure across the world.  More...

Criminal justice responses to child sexual abuse material offending: a systematic review and evidence and gap map
Australian Institute of Criminology: 08 April 2021
This report provides the world’s first systematic review of criminal justice responses to child sexual abuse material (CSAM) offending. More...


Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338
PRIVATE INTERNATIONAL LAW – application for permanent stay of proceedings alleging contraventions of Competition and Consumer Act 2010 (Cth) (‘CCA’) Pt IV, Australian Consumer Law (‘ACL’) s 21 – where exclusive jurisdiction clause requires litigation relating to app developer agreement to occur in Northern District of California – where First Applicant has commenced proceedings against First Respondent in Northern District of California alleging contraventions of United States and Californian competition law – whether Australian proceedings ‘relate to’ agreement
PRIVATE INTERNATIONAL LAW – discretionary non-exercise of jurisdiction – whether ‘strong reasons’ adduced against grant of stay, considering Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418 – whether CCA Pt IV, ACL s 21 mandatory laws of the forum – where parties agree courts in Northern District of California have jurisdiction to hear claims under CCA and ACL – whether court in Northern District of California would decline to exercise jurisdiction on discretionary grounds – whether Akai places onus on party arguing for stay to prove case will be heard by foreign court

Matson and Attorney-General's Department (Freedom of information) [2021] AATA 788
PRACTICE AND PROCEDURE – application for a confidentiality order – application for release of documents from implied undertaking – application for adjournment of interlocutory proceedings – where documents are exempt from production under s 33 of the Freedom of Information Act 1982 – where Tribunal cannot disclose material which may ultimately be found to be an exempt document – where refusal to make confidentiality order would obviate the purpose of substantive application – confidentiality order granted – where release from implied undertaking would have no utility – release from implied undertaking refused – application for adjournment refused
Administrative Appeals Tribunal Act 1975; Freedom of Information Act 1982

Duck v Airservices Australia (No 3) [2021] FCA 304
STATUTORY INTERPRETATION – application for costs against non-party funder in industrial class action – whether power to order costs against non-party – whether in the exercise of discretion costs orders should be made against funder – where the Court cannot make an ordinary costs order against a party under s 43 of the Federal Court Act 1976 (Cth) because of s 570 of the Fair Work Act 2009 (Cth) – held: s 570 does not prevent the Court from making a non-party costs order as provision only applies to a party to proceedings

Gardner Industries Pty Ltd as trustee for the S M Gardner Family Trust v Telstra Corporation Limited [2021] FCA 294
COPYRIGHT – consideration of an application under s 115A of the Copyright Act 1968 (Cth) for orders requiring the respondent carriage service providers to take steps to disable access to online locations outside Australia
Copyright Act 1968 (Cth), s 115A

Egan v North Goonyella Bodycorp Two [2021] QCAT 110
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Dividing fence dispute – whether an existing fence is a “sufficient dividing fence” – relevant considerations in determining whether the existing fence is sufficient, so as to require contribution between adjoining owners
Queensland Civil and Administrative Tribunal Act 2009 Qld s 7, 11, 12, 13, s 20(1), 35, 36; Dividing Fences Act 1861 Qld Preamble, s 5, s 13 

The Star Entertainment Qld Limited v Yew Choy Wong [2021] QSC 67
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – GENERALLY – where the defendant resides and has been served outside Australia – where the defendant seeks an order that the proceeding be dismissed or stayed or service be set aside pursuant to r 127 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the claim has insufficient prospects of success to warrant putting the defendant to the time, expense and trouble of defending it
PRIVATE INTERNATIONAL LAW – SERVICE OUT OF JURISDICTION – GENERALLY – where the plaintiff commenced proceedings in Singapore against the defendant in respect of the same damages claimed in this proceeding – where the Singapore action was dismissed by reason of a statutory bar – whether in light of the Singapore action the present proceeding is vexatious or oppressive
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – ATTEMPTS TO RELITIGATE – where the plaintiff discontinued proceedings in this court against the defendant before the defendant filed a defence

Ryle v Venables & Ors [2021] QSC 60
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - GENERALLY - where the applicant was employed by the Department of Justice and Attorney-General - where the applicant made a public interest disclosure in relation to a bail program being run by the applicant’s colleague, W - - where the applicant made a complaint of reprisal contrary to the Public Interest Disclosure Act 2010 - where the applicant made a complaint of impairment discrimination contrary to the Anti-Discrimination Act 1991 - where both complaints were made after the statutory time limit had expired - where the complaint of reprisal was accepted by the first respondent acting in her function as the delegate of the Anti-Discrimination Commissioner - where the complaint of impairment discrimination was rejected by the first respondent acting in her function as the delegate of the Human Rights Commissioner on the basis of it being out of time - where the applicant sought judicial review of the decision to reject the impairment discrimination complaint - whether the applicant has made out one of the grounds of review.
Acts Interpretation Act 1954 Qld s 14A, s 14B; Human Rights Act 2019 Qld s 3, s 118
Judicial Review Act 1991 Qld s 4, s 7, s 20, s 23; Public Interest Disclosure Act 2010 Qld s 11, s 40, s 41, s 42, s 43, s 44 



Regulatory Powers (Standardisation Reform) Act 2021 
31/03/2021 - Act No. 32 of 2021 as made


Public Governance, Performance and Accountability (Financial Reporting) Amendment (2021 Measures No. 1) Rules 2021 
08/04/2021 - This instrument amends the Public Governance, Performance and Accountability (Financial Reporting) Rule 2015 to provide an inclusion of a reference to Division 4 of Part 2-3 of the PGPA Rule, which came into effect during May 2020 to address different scenarios that may arise following machinery of government changes, requirements to ensure consistency across Commonwealth

Taxation Administration Amendment (Updating the List of Exchange of Information Countries) Regulations 2021
01/04/2021 – This instrument amends the subsection 34(2) of the Taxation Administration Regulations 2017 to add nine jurisdictions and remove one jurisdiction from the list of foreign countries and foreign territories which are information exchange countries.

Telecommunications (Interception and Access) (Communications Access Co-ordinator) Amendment Instrument 2021 (No. 1)
31/03/2021 – This instrument amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2019 to reflect changes due to Departmental restructuring and a concurrent structural change. 

High Court of Australia (Building and Precincts—Regulating the Conduct of Persons) Directions 2021 
31/03/2021 - This instrument updates the Directions made in 2010 by the Chief Executive and Principal Registrar pursuant to subsection 19(2) of the High Court of Australia Act 1979. - Directions in addition to powers contained in Court Security Act 2013 (Cth) and Court Security Regulation 2013 (Cth)

Commonwealth Registers Rules 2021 
30/03/2021 - These Rules prescribe additional functions for the Registrars to enable the Registrars to carry out various preparatory activities necessary for the transfer of registry functions from the Australian Securities and Investments Commission (ASIC) to the Commonwealth Registrars.



Bills updated in the last week

Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020
Stage reached: Passed with amendment on 25/03/2021 Assent Date: 7/04/2021
Act No: 7 of 2021 Commences: see Act for details The Bill aims to implement the recommendations made by the Queensland Law Reform Commission in its report ‘Review of consent laws and the excuse of mistake of fact’. The amendments seek to codify existing case law into the Criminal Code itself

Child Protection and Other Legislation Amendment Bill 2020
Stage reached: Passed on 23/03/2021 Assent Date: 7/04/2021 Act No: 6 of 2021 Commences: see Act for details
The objectives of the Bill are to: enhance the approach to permanency under the Child Protection Act 1999  and clarify the importance of and promote alternative permanency options for children subject to a child protection order granting long-term guardianship to the chief executive.The Bill also includes a technical amendment to the Adoption Act 2009 to allow the chief executive of the Department of Children, Youth justice and Multicultural Affairs to apply for final adoption orders for a small number of children from overseas.

Acts Commencement

Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and perceived integrity and public accountability of State elections and ensure public confidence in State electoral and political processes
Commencement: (1)Chapter 2 commences as follows—  Chapter 2 commences as follows— (b)section 22, to the extent it inserts new part 11, division 5, commences on 1 January 2022

Subordinate legislation reminder
No 144 Electoral Amendment Regulation 2020
5 Amendment of s 8 (Amount of policy development payment to which eligible registered political party is entitled—Act, s 240) (1) Section 5 commences on 1 January 2022

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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