Why our Politicians need to "Learn to Behave" and be Respectful

Federal Laws and State Jurisdiction: Understanding the Supremacy of Federal Legislation in Australia

In Australia’s legal framework, federal laws hold a superior position over state-based jurisdiction in areas of conflict or overlap, guided by the principle of federal supremacy under the Australian Constitution. This dynamic is critical for organizations, particularly when navigating evolving workplace legislation such as the Respect at Work Act 2022. Below, we outline key principles, practical implications, and the roles of federal and state bodies in ensuring compliance and alignment.

Key Constitutional Principles

1. Section 109 of the Constitution:
2. When a state law is inconsistent with a federal law, the federal law prevails, and the conflicting provisions of the state law are rendered invalid to the extent of the inconsistency. Example: Federal legislation that mandates a "positive duty" for employers to address workplace harassment overrides any less stringent state provisions.
3. Division of Powers: The Constitution divides legislative powers between federal and state governments:
4. Exclusive powers: Federal areas such as defense and immigration.
5. Concurrent powers: Shared responsibilities, including workplace relations and taxation.
6. In concurrent areas, federal laws take precedence where inconsistencies arise, per Section 109.

Practical Implications for Employers

Respect at Work Act 2022 (Federal Legislation):

Positive Duty on Employers:

Employers must take reasonable and proportionate measures to eliminate:

• Sexual harassment.
• Sex-based harassment.
• Hostile work environments.
• Victimization.

This federal obligation applies across all states, regardless of local legislative provisions.

Broader Coverage:

• Federal laws, such as the amended Sex Discrimination Act 1984, typically offer broader protections compared to state laws like the Anti-Discrimination Act 1977 (NSW). For instance:
• The federal act introduces a positive duty for employers, a provision absent in many state laws.
• Federal mechanisms ensure stricter compliance and enforcement, benefiting employees across the nation.

Complaint Mechanisms:

• Employees can lodge complaints under federal law through the Australian Human Rights Commission (AHRC), bypassing less comprehensive state systems.

Role of the Australian Human Rights Commission (AHRC)

As the primary body enforcing the Respect at Work Act, the AHRC plays a pivotal role in guiding and clarifying federal standards:

1. Oversight of Positive Duty:The AHRC monitors and enforces compliance, ensuring employers proactively address workplace safety and inclusivity.
2. Education and Guidance:The AHRC provides resources, training, and tools to help employers align with federal obligations, including:Developing robust workplace policies.Conducting risk assessments.
3. Support for Stakeholders:The AHRC facilitates access to complaint mechanisms and mediation services, ensuring individuals and organizations can resolve disputes under the broader federal framework.

Impact on State and Local Jurisdictions

While state agencies, like the Anti-Discrimination Board of NSW (ADBNSW), remain relevant, their scope is subordinate to federal legislation in areas of inconsistency:

1. Jurisdictional Overlap: The ADBNSW can handle complaints under state laws, but federal provisions, such as those in the Respect at Work Act, supersede in cases of conflict.
2. Employer Obligations: Employers must adhere to federal standards, which may impose stricter requirements than state laws, ensuring nationwide consistency in workplace protections.
3. Federal Pathways: Employees increasingly prefer federal mechanisms due to their broader scope and enhanced protections.

Ensuring Compliance

Government organizations and employers across Australia must:

• Prioritize Federal Standards: Align workplace policies with the Respect at Work Act and broader federal laws.
• Engage with the AHRC: Utilize federal resources for training, guidance, and support to meet positive duty requirements.
• Monitor Legal Developments: Stay informed about changes to federal legislation and their implications for state jurisdiction.

The principle of federal supremacy ensures that federal laws, such as the Respect at Work Act, provide a uniform framework for workplace safety and inclusivity across Australia.

“While state-based systems like the ADBNSW remain valuable, they operate within the overarching federal context, particularly in cases of inconsistency. “

By understanding and implementing federal obligations, government organizations can create safer, more equitable workplaces and navigate legal complexities with confidence.

At its core, this is about expecting basic decency and respect for every person in the workplace "a principle so fundamental it should be beyond debate."

It is about demanding that Australian politicians, as leaders of our nation, step up and lead by example. When they fail to do so, they send the wrong message to our kids about how not to behave, eroding the very foundations of our shared values.

Respect, honesty, and trust are not lofty ideals; they are the bedrock of a functioning, fair, and inclusive society.

The Respect at Work Laws embody these principles, championing the right of every individual to feel safe, valued, and protected in their workplace. It is time for every leader—political or otherwise—to uphold these laws and reflect their spirit in action, shaping a better Australia for future generations.

Visit www.respectatwork.org to learn more about building a culture of respect and decency that starts with us all.