Anti-Sexual Harassment Bill passed by Dewan Rakyat
The Second and Third Reading of the Anti-Sexual Harassment Bill 2021 took place on 19 July 2022, and was passed by the Dewan Rakyat on 20 July 2022.
Since the First Reading on 15 December 2021, it has been debated how the Bill could be improved, including addressing issues such as the mental health of victims, protection of victims from retaliation, promoting awareness of the public, emphasis on prevention of sexual harassment, the importance of organisational duty of care, gender equality, ensuring that remedies under the legislation is widely available to all. (You can read our article here about the key provisions of the Anti-Sexual Harassment Bill 2021 tabled in December 2021)
Out of the numerous discussions, here are the new provisions/amendments that have made it into the Bill passed by Dewan Rakyat:
The purpose of the legislation to promote awareness has been elaborated so it is not only to raise awareness, but also to prevent sexual harassment.
This addition is only stated in the long title, but there are no substantive provisions that would actually prevent sexual harassment (besides requesting a person to display a notice). Sexual harassment has still not been made an offence, and the system will rely on the propagation of awareness and the punishment of offenders as a form of deterring others from committing sexual harassment.
2. Jurisdiction of the Tribunal
Provisions have been added so the jurisdiction of the Tribunal to hear complaints of sexual harassment only relate to instances of sexual harassment which occur after the Act comes into operation.
Further, a complaint referred to the Tribunal under the Bill is subject to the Limitation Act 1953. While the Bill doesn’t expressly state what is the limitation period, it is presumed this means a complaint of sexual harassment must be brought to the Tribunal within 6 years from when the harassment occurred.
3. Legal representation allowed
The right to appear at hearings has been amended in that parties may be represented by an advocate and solicitor where the Tribunal “is of the opinion that the matter in question involves complex issues of law”. Additionally, if one party is allowed legal representation by the Tribunal, the other party also may have legal representation.
This is still not an automatic right to representation, as a party can be represented only if the Tribunal is of the opinion that the complaint involves complex issues of law. One of the potential effects of this provision is that even if both parties wish to be represented, but the complaint involves no complex issue of law, neither party may be represented.
We must see how this provision is used in practice. For example, in the Industrial Court, applications for parties to be represented by a legal practitioner, although still subject to the discretion of the Court, are almost always automatically granted/allowed and are treated as a formality.
4. Functions of the Administrator
The functions of the Administrator have been explained further in that the Administrator may promote any activity including by requesting any person to display any notice at any place relating to the prevention or awareness of sexual harassment.
This addition elaborates the description of “activities”, but the only example given is to request a person to display a notice at any place.
As at the date of this article, the Anti-Sexual Harassment Bill 2021 is not in force yet as it still needs to be passed by Dewan Negara and receive royal assent.
We have yet to see the effects of the establishment of the Tribunal, and what the system will resemble when it is in operation. Although the Bill will eventually come into force, regulations and operational procedures of the Tribunal still must be determined before the system is ready to be adopted.
This article was written by Adelyn Fang, Associate from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.