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Today is a significant day in the fight against sexual harassment and discrimination. New laws come into effect from December 12, giving the Australian Human Rights Commission new powers to investigate sexual harassment and enforce outcomes.

Lawyer Prabha Nandagopal worked as senior legal advisor on the Human Rights Commission’s Respect @ Work inquiry. She is now the founder of Elevate Consulting Partners, advising businesses on this very topic, and talks to Sean Aylmer about what companies need to do to comply with the new rules.

Find out more: https://fearandgreed.com.au

See omnystudio.com/listener for privacy information.

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Sean Aylmer: Welcome to the Fear and Greed Business Interview. I’m Sean

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Sean Aylmer: Aylmer.
Today’s a significant day in the fight against sexual

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Sean Aylmer: harassment and discrimination in the workplace. From December 12, today,

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Sean Aylmer: the Australian Human Rights Commission has new powers to investigate

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Sean Aylmer: sexual harassment and unlawful conduct under the Sex Discrimination Act.

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Sean Aylmer: It’s a major change and many businesses may find themselves

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Sean Aylmer: unprepared. Prabha Nandagopal is a lawyer who worked as senior legal

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Sean Aylmer: advisor on the Human Rights Commission’s Respect at Work Inquiry.

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Sean Aylmer: She has since founded Elevate Consulting Partners, advising businesses on

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Sean Aylmer: this very topic. Prabha, welcome to Fear and Greed.

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Prabha Nandagopal: Hi, Sean. It’s terrific to be here.

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Sean Aylmer: Firstly, can you give me an idea of just how

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Sean Aylmer: big a problem sexual harassment is at work? I mean,

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Sean Aylmer: the data is quite shocking.

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Prabha Nandagopal: It really is, Sean. So sexual harassment is pervasive in Australian

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Prabha Nandagopal: workplaces, and no organization or industry is immune. Every five

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Prabha Nandagopal: years, the Australian Human Rights Commission conducts a survey into

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Prabha Nandagopal: sexual harassment, and the last one was released in December

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Prabha Nandagopal: 2022, and it found that 41% of women and 26%

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Prabha Nandagopal: of men experience sexual harassment in the workplace. And for

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Prabha Nandagopal: some groups that rate is even higher, for example, 46%

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Prabha Nandagopal: of people who identify as LGBTQI+, 48% of people with

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Prabha Nandagopal: a disability and 56% of Aboriginal and Torres Strait Islander

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Prabha Nandagopal: people experience sexual harassment in the workplace.

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Sean Aylmer: Wow. The numbers are astounding. What is sexual harassment? I

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Sean Aylmer: mean, maybe we need to take it back a step

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Sean Aylmer: so that people understand what it is, because if there’s

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Sean Aylmer: that much of it going on, it can’t all be…

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Sean Aylmer: well, maybe it is all for poor reasoning, but there

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Sean Aylmer: must be ignorance out there as well.

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Prabha Nandagopal: Yeah, there really is. What the survey found was that

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Prabha Nandagopal: 28% of people, who originally said that they had not

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Prabha Nandagopal: experienced sexual harassment based on the legal definition, went on

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Prabha Nandagopal: to report experiencing one of the sexual harassment behaviors. So

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Prabha Nandagopal: in a nutshell, sexual harassment is sexual conduct or a

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Prabha Nandagopal: sexual advance that is unwelcome, that a reasonable person would

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Prabha Nandagopal: anticipate the possibility, would intimidate, offend, or humiliate.

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Sean Aylmer: Okay. What sectors are worst for it?

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Prabha Nandagopal: Yeah, look. At the moment, we found in the last

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Prabha Nandagopal: survey, retail is a sector that’s really problematic. So 40%

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Prabha Nandagopal: of people working in the retail industry reported experiencing sexual harassment.

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Sean Aylmer: So take me through the new legislation. It’s based around

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Sean Aylmer: a company’s positive duty to eliminate sexual harassment. What does

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Sean Aylmer: positive duty mean?

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Prabha Nandagopal: So basically, businesses now have a legal obligation to take

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Prabha Nandagopal: proactive measures to eliminate sexual harassment and sex discrimination. And

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Prabha Nandagopal: this is a huge shift for employers from the previous complaint-

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Prabha Nandagopal: based model, which is reactive, and it relied on individuals

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Prabha Nandagopal: having to bear the burden of making complaints. This has

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Prabha Nandagopal: now shifted to a proactive model in which employers must

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Prabha Nandagopal: take measures to prevent harmful behavior. And the key point

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Prabha Nandagopal: businesses need to understand is they can be held liable

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Prabha Nandagopal: for failing to take those measures even if no one

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Prabha Nandagopal: has made a complaint.

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Sean Aylmer: Stay with me Prabha, we’ll be back in a minute.
I’m speaking to Prabha

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Sean Aylmer: Nandagopal, founder of Elevate Consulting Partners. Okay. So let’s take

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Sean Aylmer: a retailer and let’s say it’s a cafe and they’ve

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Sean Aylmer: got 10 staff. And is it about making sure that

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Sean Aylmer: the cafe owner educates, trains appropriate behavior in the workplace?

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Sean Aylmer: I’m thinking of it in pragmatic terms. What does a

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Sean Aylmer: small owner of a shop need to do, for example?

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Prabha Nandagopal: Yes. So if we take a step back, the Australian

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Prabha Nandagopal: Human Rights Commission, who have been conferred the powers to

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Prabha Nandagopal: monitor and enforce compliance, have put out a suite of

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Prabha Nandagopal: guidance material that’s based on the positive duty compliance framework.

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Prabha Nandagopal: They set out seven standards, which they expect businesses to

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Prabha Nandagopal: meet in order to satisfy the duty. So the seven

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Prabha Nandagopal: standards are in the areas of leadership, knowledge, culture, risk

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Prabha Nandagopal: management, support, reporting and response, and monitoring and transparency and

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Prabha Nandagopal: evaluation.
Now, for a small business owner, I think firstly,

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Prabha Nandagopal: you want to understand what’s happening in your workplace, speak

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Prabha Nandagopal: to your workers. Where is the sexual harassment and sex

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Prabha Nandagopal: discrimination occurring? What are the hotspots? What are your risk

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Prabha Nandagopal: factors? Now, we know that under- reporting of sexual harassment

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Prabha Nandagopal: is rife, so only 18% of people who experience sexual

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Prabha Nandagopal: harassment report it. So it is not a reliable indicator

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Prabha Nandagopal: to rely on formal complaints that have been made.
Then

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Prabha Nandagopal: you want to ensure that you have a very clear,

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Prabha Nandagopal: simple policy that outlines the behaviors that are unlawful, expected

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Prabha Nandagopal: stance of behavior, as well as letting your staff know

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Prabha Nandagopal: how they can make a report if they experience sexual

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Prabha Nandagopal: harassment or sex discrimination.
And then, another key thing businesses

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Prabha Nandagopal: of all sizes need to do, is to ensure that

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Prabha Nandagopal: their workforce is educated on sexual harassment and sex discrimination

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Prabha Nandagopal: behaviors and what their rights and responsibilities in the workplace are.

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Sean Aylmer: Okay. So I mean, there’s a lot in that, and I can kind

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Sean Aylmer: of get my head around a small business person doing

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Sean Aylmer: the right thing. What about a really big retailer who

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Sean Aylmer: literally has tens of thousands of employees, they’re going to

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Sean Aylmer: have to make sure they’ve got some pretty good governance

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Sean Aylmer: around this, that people are trained and uneducated?

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Prabha Nandagopal: Yeah, absolutely. And actually just last week, the AICD, jointly

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Prabha Nandagopal: with ACSI, released research on how prepared boards are for

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Prabha Nandagopal: their obligations and to provide support for directors in navigating

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Prabha Nandagopal: this new landscape. And the research found that, while 85%

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Prabha Nandagopal: of ASX 300 directors believe that the prevention of workplace sexual

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Prabha Nandagopal: harassment was a high priority issue for boards, most of

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Prabha Nandagopal: the directors surveyed, including 80% of women directors, don’t believe

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Prabha Nandagopal: that their boards are fully equipped to meet the positive

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Prabha Nandagopal: duty obligations. So for these large organizations, I think the

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Prabha Nandagopal: first thing is for them to ensure that their leaders

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Prabha Nandagopal: understand that they are ultimately responsible and accountable for eliminating

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Prabha Nandagopal: sexual harassment and sex discrimination. This is not an issue

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Prabha Nandagopal: that can be delegated to HR or people and culture.

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Prabha Nandagopal: It must be treated like any other business imperative and

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Prabha Nandagopal: backed by meaningful action.

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Sean Aylmer: Okay. So what happens if companies don’t comply?

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Prabha Nandagopal: So the Australian Human Rights Commission does have monitoring and

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Prabha Nandagopal: enforcement powers. So if the commission reasonably suspects that a

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Prabha Nandagopal: business is not complying with the positive duty, they can

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Prabha Nandagopal: commence an inquiry. They can issue compliance notices, and then

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Prabha Nandagopal: if those compliance notices aren’t met, then they can go to the federal court

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Prabha Nandagopal: to seek enforcement.

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Sean Aylmer: Okay. So it’s a very, very serious issue this, and

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Sean Aylmer: from today, literally, all businesses need to be at least

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Sean Aylmer: thinking about it. It sounds like Australian companies and organizations

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Sean Aylmer: really aren’t ready for the change. And how effective is

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Sean Aylmer: this going to be if companies aren’t ready?

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Prabha Nandagopal: Well, companies have been given 12 months to get their

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Prabha Nandagopal: house in order. The legislation was passed in December last

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Prabha Nandagopal: year. I think this enforcement date, today, 12th of December,

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Prabha Nandagopal: is a good opportunity for organizations and businesses to be

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Prabha Nandagopal: reminded that now the commission can start enforcing and you

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Prabha Nandagopal: really must start putting measures in place to eliminate sexual

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Prabha Nandagopal: harassment and sex discrimination.

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Sean Aylmer: I’m just interested, where is Australia in terms of other countries?

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Sean Aylmer: Does this legislation put us in line with other countries?

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Sean Aylmer: Are we still lagging? Where are we up to?

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Prabha Nandagopal: Yeah. So in 2020, the National Inquiry into Sexual Harassment found

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Prabha Nandagopal: that Australia was lagging behind other countries in terms of

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Prabha Nandagopal: prevention and response to sexual harassment. But since then, over

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Prabha Nandagopal: the past three years, there has been significant legal, regulatory

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Prabha Nandagopal: and policy changes that have brought us more in line

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Prabha Nandagopal: with leading practice around the world. I think, particularly, with

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Prabha Nandagopal: this positive duty framework, we are coming out ahead. Just

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Prabha Nandagopal: a few weeks ago, the United Kingdom passed their positive

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Prabha Nandagopal: duty legislation, and that only comes into force later next

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Prabha Nandagopal: year. So I think there are going to be many

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Prabha Nandagopal: eyes internationally on Australia to see how the business community

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Prabha Nandagopal: responds to their new obligations and the impact this will

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Prabha Nandagopal: have on prevalence rates.

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Sean Aylmer: Prabha, thank you very much for talking to Fear and Greed.

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Prabha Nandagopal: No problems at all. Thank you, Sean.

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Sean Aylmer: That was Prabha Nandagopal, founder of Elevate Consulting Partners. This is

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Sean Aylmer: the Fear and Greed Business Interview. Join us every morning

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Sean Aylmer: for the full episode of Fear and Greed, Australia’s best

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Sean Aylmer: business podcast. I’m Sean Aylmer. Enjoy your day.