In Australia and state-based jurisdictions the question is always asked does the Federal Laws trump state based jurisdictions. What we know is that Federal laws trump state-based jurisdiction in certain circumstances, under the Australian Constitution, due to the principle of federal supremacy. Here’s how it works:
Key Constitutional Principles
- Section 109 of the Constitution:
- When a state law is inconsistent with a federal law, the federal law prevails, and the state law becomes invalid to the extent of the inconsistency.
- For example, if a federal law imposes obligations that conflict with a state law, the federal law takes precedence.
- Division of Powers:
- The Constitution outlines areas of federal and state legislative power. Some powers are exclusive to the Commonwealth (e.g., defence, immigration), while others are shared (concurrent powers) (e.g., workplace relations, taxation).
- In areas of overlap, Section 109 applies.
Practical Implications
- In contexts like the Respect at Work Act (federal legislation):
- Even though workplace relations are often regulated by state laws, federal laws (like the Sex Discrimination Act 1984, amended by the Respect at Work Act) apply universally, including to state jurisdictions, overriding inconsistent state provisions.
- States can legislate on matters not covered by federal law, or where federal laws permit state-specific provisions. However, states cannot legislate in a way that directly contradicts federal law.
Exceptions & Nuances
- Residual Powers: States retain exclusive powers in areas not listed in the Constitution (e.g., criminal law, education), unless federal laws specifically intervene.
- Harmonized Laws: In some areas, federal and state governments collaborate to create consistent laws (e.g., workplace health and safety, environmental protection).
Judicial Interpretation
- If disputes arise about whether a federal law invalidates a state law, the matter is resolved by the High Court of Australia, which interprets the Constitution and determines the scope of the laws.
While states maintain significant autonomy, federal laws have ultimate authority in overlapping or conflicting areas, ensuring consistency across Australia. The Respect at Work laws, implemented through amendments to the Sex Discrimination Act 1984 (Cth), trump the authority of as an example the Anti-Discrimination Board of NSW (ADB) in areas of inconsistency, due to the principle of federal supremacy under Section 109 of the Australian Constitution.
Respect at Work Laws Apply in the following cases.
- Federal Scope:
- The Respect at Work Act 2022 amends the Sex Discrimination Act 1984 (Cth) to impose a positive duty on all employers to take reasonable and proportionate measures to eliminate sexual harassment, sex-based harassment, and discrimination in workplaces.
- The Australian Human Rights Commission (AHRC) is tasked with oversight and enforcement of these obligations.
- NSW Anti-Discrimination Board:
- The Anti-Discrimination Board (ADB) enforces the Anti-Discrimination Act 1977 (NSW), which prohibits discrimination, harassment, and victimization within NSW.
- While the NSW Act remains applicable, federal law takes precedence in case of inconsistencies.
Federal vs. State Jurisdiction
- Broader Coverage Under Federal Law:
- The federal Respect at Work Act offers broader protections than the Anti-Discrimination Act 1977 (NSW). For example, the federal law explicitly includes a positive duty for employers, which is absent in many state anti-discrimination laws, including NSW.
- If a state law imposes lesser obligations or narrower protections, the federal law overrides the state provisions.
- Complaint Mechanisms:
- Individuals may lodge complaints about sexual harassment or discrimination under federal law with the AHRC, rather than using the state-based mechanisms of the ADB.
- This provides a pathway to federal protections even if state laws appear to be less robust.
Impact on the Anti-Discrimination Board of NSW
- Overlap in Jurisdiction:
- The ADBNSW continues to handle complaints under state laws, but the federal laws apply universally and supersede in cases of conflict.
- The AHRC and federal courts take precedence in enforcing rights and obligations under the Respect at Work framework.
- Practical Implications:
- Employers in NSW are bound by both federal and state laws, but federal obligations (e.g., positive duty) take priority where they are stricter or impose additional requirements.
- Individuals seeking recourse may prefer to use federal mechanisms to take advantage of broader protections.
So here is what we know …. the Respect at Work laws effectively overrides any conflicting provisions of the Anti-Discrimination Act 1977 (NSW) or the authority of the ADBNSW in areas of inconsistency. This ensures uniformity and alignment with enhanced federal protections for workplace safety and inclusivity. The Anti-Discrimination Board NSW remains relevant for state-specific cases, but employers and employees must comply with the stricter federal standards.
So in actual fact the Australian Human Rights Commission has a major role in guiding the changes and clarifications which cannot be devolved to the State based jurisdictions. The Australian Human Rights Commission (AHRC) must play a central role in implementing and managing the Respect at Work laws under the Sex Discrimination Act 1984 (Cth), as amended by the Respect at Work Act 2022. Its responsibilities span oversight, enforcement, education, and providing support to individuals and organizations. That is:
- Oversight of the Positive Duty
- The Respect at Work Act introduced a positive duty on employers to take reasonable and proportionate measures to eliminate:
- Sexual harassment.
- Sex-based harassment.
- Hostile work environments.
- Victimisation.
- The AHRC monitors compliance with this duty, ensuring employers proactively create safe and inclusive workplaces rather than merely reacting to complaints.
- Education and Guidance
- The AHRC provides resources, training, and guidance to help employers understand and fulfill their obligations under the Respect at Work Act. This includes:
- Best practices for workplace policies.
- Tools for conducting risk
SO WHAT DOES THIS MEAN FOR MP’s in AUSTRALIA
The next question we get asked is how does the Parliamentary Precincts Act 1988 define and manages the areas comprising Australia’s Parliamentary Houses and their immediate surroundings. Under this Act, the control and management of the parliamentary precincts are vested jointly in the Presiding Officers—the President of the Senate and the Speaker of the House of Representatives. Legislation Australia
The Work Health and Safety Act 2011 (WHS Act) establishes duties to ensure health and safety in workplaces across Australia. It applies to a ‘person conducting a business or undertaking’ (PCBU), which includes employers, self-employed individuals, and certain officers. Under the WHS Act, officers have a duty to exercise due diligence to ensure compliance with health and safety obligations. Legislation Australia
Members of Parliament (MPs) are generally considered ‘officers’ under the WHS Act, given their roles in influencing the management of parliamentary operations. Therefore, they have a duty to ensure that the Parliament complies with health and safety obligations. However, the specific application of the WHS Act to MPs can be complex, particularly concerning parliamentary privilege and the unique functions of parliamentary roles.
Regarding induction under WHS protocols, while the WHS Act does not explicitly mandate inductions for MPs, it requires that all officers, including MPs, acquire and maintain up-to-date knowledge of work health and safety matters. Induction programs are a common method to fulfill this requirement, ensuring that MPs are informed about their WHS duties and the specific health and safety protocols within the parliamentary precincts.
The Parliamentary Precincts Act 1988 outlines the management of Parliament House areas, while the WHS Act imposes health and safety duties on all officers, including MPs. Even if MPs are not formally inducted under WHS protocols, they are legally obligated to be informed about and comply with health and safety requirements within the parliamentary precincts.
The next question is ” How does this apply to MP’s from a risk perspective if they are not complying with Respect at Work and Psychological safety at work laws and legislation?
From a risk perspective, non-compliance by Members of Parliament (MPs) with Respect at Work and Psychological Safety at Work laws and legislation introduces significant risks, including legal, reputational, and operational consequences.
1. Legal Risks
- Breach of Work Health and Safety (WHS) Laws:
- MPs, as officers under the Work Health and Safety Act 2011, have a duty to provide a safe working environment, free from harassment, discrimination, and bullying.
- Non-compliance with the Respect at Work recommendations or psychological safety obligations could result in legal actions, fines, or penalties imposed on the institution and, in some cases, the individual MP.
- Failure to uphold these laws may also breach workplace anti-discrimination laws and the Sex Discrimination Act 1984, particularly in relation to sexual harassment.
- Positive Duty under the Respect@Work Amendments:
- The 2021 amendments to the Sex Discrimination Act and the introduction of a Positive Duty under the Respect@Work framework require MPs to take proactive steps to eliminate harassment and foster respect.
- Failure to comply can expose MPs to enforcement actions by regulators, such as the Australian Human Rights Commission (AHRC).
2. Reputational Risks
- Loss of Public Trust:
- MPs hold positions of influence and are expected to uphold the highest standards of workplace behavior. Non-compliance with psychological safety and respect obligations can erode public trust in their leadership.
- Media exposure of incidents stemming from non-compliance (e.g., workplace harassment or bullying claims) can result in significant reputational damage to both the individual MP and the Parliament.
- Impact on Stakeholder Relationships:
- Non-compliance can harm relationships with parliamentary staff, colleagues, and constituents, as MPs may be perceived as dismissive of workplace safety and respect.
3. Operational Risks
- Toxic Work Environment:
- Failing to comply with psychological safety obligations can contribute to a toxic work culture, reducing staff morale, increasing absenteeism, and leading to high staff turnover.
- Staff members who feel unsafe or unsupported may struggle to perform, potentially impacting the MP’s effectiveness in delivering parliamentary duties.
- Risk of Formal Complaints or Investigations:
- Complaints lodged by employees or stakeholders due to non-compliance can lead to investigations, disrupting parliamentary operations and consuming resources.
4. Financial Risks
- Compensation and Legal Costs:
- Workplace claims related to harassment, discrimination, or psychological injury could lead to significant financial liabilities for settlements, legal fees, or compensatory damages.
- Increased Insurance Premiums:
- Non-compliance could lead to higher premiums for professional indemnity or workplace liability insurance, increasing operational costs for MPs and parliamentary bodies.
How to Mitigate Risk Management for MPs?
- Induction and Training:
- MPs should undergo mandatory training on Respect at Work principles, psychological safety, and anti-harassment laws to ensure compliance.
- Leadership Accountability:
- MPs must model respectful behavior and address workplace issues proactively to create a psychologically safe environment.
- Policies and Procedures:
- Implement and enforce robust policies that reflect Respect at Work and psychological safety obligations, ensuring all staff are aware of their rights and avenues for support.
- Regular Audits and Feedback:
- Conduct regular workplace audits to assess compliance and address any gaps in psychological safety and respect frameworks.
- Support Systems:
- Establish confidential support mechanisms for staff to report issues without fear of retaliation.
Non-compliance with Respect at Work and psychological safety laws can have far-reaching consequences for MPs, highlighting the necessity of proactive measures to mitigate these risks.
What about for Parliamentary Precincts Act NSW?
The Parliamentary Precincts Act 1997 (NSW) defines the boundaries and management of the parliamentary precincts in New South Wales, placing their control under the Presiding Officers—the President of the Legislative Council and the Speaker of the Legislative Assembly. This Act primarily addresses the physical management and security of these precincts.
However, the Act does not explicitly address workplace health and safety (WHS) obligations or the conduct of Members of Parliament (MPs) within the precincts. Therefore, MPs’ responsibilities concerning WHS, including psychological safety and adherence to respectful workplace practices, are governed by broader legislation such as the Work Health and Safety Act 2011 (NSW) and the Sex Discrimination Act 1984 (Cth).
Non-compliance with these WHS obligations by MPs can now lead to several risks:
- Legal Risks: MPs may face legal action for failing to ensure a safe working environment, potentially resulting in fines or other penalties.
- Reputational Risks: Incidents of bullying, harassment, or unsafe work practices can damage the reputation of individual MPs and the Parliament as a whole.
- Operational Risks: A workplace culture that tolerates disrespect or psychological harm can lead to decreased staff morale, increased turnover, and reduced productivity.
To mitigate these risks, it is crucial for MPs to MUST:
- Participate in WHS Training: Engage in training programs that cover respectful workplace behavior and psychological safety.
- Promote a Safe Work Environment: Actively foster a culture of respect and safety within the parliamentary precincts.
- Implement and Uphold Policies: Ensure that policies addressing bullying, harassment, and WHS are effectively implemented and enforced.
While the Parliamentary Precincts Act 1997 (NSW) outlines the management of the parliamentary precincts, MPs’ obligations regarding workplace safety and respectful conduct are governed by other legislative frameworks.
Non-compliance with these obligations will now lead to significant legal, reputational, and operational risks. I am sure they don’t want to risk that.
