It’s now almost seven years since the US actor Alyssa Milano tweeted: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” The New York activist Tarana Burke had coined the “me too” phrase in 2006 but Milano’s tweet popularised the movement and triggered a volcanic reaction, as women across the world shared their experiences of sexual harassment and assault.
#Metoo had a profound impact. Businesses made worthy announcements of new policies and initiatives. Politicians clamoured to establish inquiries then introduce policies and laws that would render women safer at work. Major changes were made to workplace laws in response to the Australian Human Rights Commission’s Respect at Work report. A movement to ban non disclosure agreements emerged.
Years later and the complaints about male behaviour towards women continue, this month with media reports accusing Nine Entertainment of inaction and a cover-up in relation to allegations about inappropriate behaviour by its former head of news and current affairs, Darren Wick. Wick has not responded to the complaints publicly, Nine has denied that there is any cover-up and the allegations themselves remain untested. If they are true it would be naive to think that these issues are confined to Nine.
I am now assisting women in pursuing claims about sexual harassment and unlawful discrimination against all Australia’s commercial television networks. Their allegations point to a deeply hierarchical industry, with men dominating the highest rungs in a punitive culture.
From what I have heard it appears that some men mistreat women with impunity because of their commercial value to a network. Complainants I have spoken to say they have faced overt hostility to pregnancy, maternity leave and women needing time off to fulfil caring responsibilities. Women are terrified of complaining about mistreatment because of a fear of retribution, including the loss of their career. NDAs abound. Indeed, some employees are required to sign NDAs in their employment contracts.
Since late 2022 all businesses have been required to take proactive and meaningful action to prevent sexual harassment and sex-based discrimination from occurring in the workplace. This positive duty seeks to create change by preventing unlawful behaviour from happening, rather than reacting to it after it has happened. Based on the complaints I have heard, it appears that commercial television is ignoring its legal obligations. Women who are affected by illegal mistreatment are not permitted to enforce that positive duty because the law vests that power exclusively in the regulator, the AHRC.
Dr Anna Cody, the sex discrimination commissioner, has eloquently explained the rationale for an expanded role for the AHRC as providing “a proactive and preventative legal framework to shift away from an individual, complaints-based model which places a heavy burden on those who experience sexual harassment”.
The AHRC has the power to conduct an inquiry if it reasonably suspects that an organisation is not complying with the positive duty. It has broad powers to ensure compliance, including demanding the production of documents and evidence. Its power may extend to obtaining evidence of women, notwithstanding that they have signed NDAs.
The time has come for the AHRC to support the women in commercial television. They shouldn’t have to fight this battle on their own.
This year we have been repeatedly reminded that the fight for gender equality is going to be with us for a long time. The relentless catalogue of horrific domestic violence and the growing recognition of the harm caused by misogyny being peddled on social media underline the challenge.
In the wise words of the former US president Barack Obama: “Progress isn’t guaranteed. It’s not inevitable. It’s something that has to be fought for.”
• Josh Bornstein is an employment lawyer who is representing a number of women in the commercial television industry
