George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Pardon me, Senator Feeney. Through you, Madam Temporary Chairman, the problem with your response, Senator Feeney, is this: reasonableness is a defence. To use the example you have posited of an employer who changes the starting time from 9 am to 7.30 am, that will have a differential effect upon those of his employees who take their kids to school and those of his employees who do not have kids to take to school. I know this well. At 7.30 am on any day in Brisbane when parliament is not sitting I may be seen taking my boy to school. The dropping off of kids at school is, as most of us know, just part of the daily life of parents.

If the starting time were to be changed and it had a differential impact on parents and single people, then proceedings could be brought under the act against the employer. It would then be thrown upon the employer to demonstrate that his or her decision was a reasonable decision. o the issue of reasonableness only starts to arise once the employer, the small business person—and we have been talking, in the context of this debate, in particular about small businesses with narrow margins, uncertain cashflows and usually not very deep capital resources—is already in the toils of the act, has already been proceeded against and then, in the appropriate tribunal, must defend themselves. Reasonableness is not an a priori part of this legislative scheme. So it is very little comfort to a small business operator who finds themselves being pursued under your proposed section 7A—after potentially spending tens of thousands or even hundreds of thousands of dollars on lawyers that they cannot afford, and spending days upon end of worry and distraction from their business which they cannot afford—at last to prepare a defence to the claim: 'Well, this was reasonable in the circumstances. So reason­ableness, as I say, sounds fine—as a legal practitioner myself, I know all about advancing arguments and mounting defences on the basis of the reasonableness of the conduct—but those arguments and defences are raised once it is already, in essence, too late for the small business operator.

Secondly, reasonableness is itself, as we all know, a very porous, open-textured concept. So, if we are to observe the good legislative practice of giving people certainty about the nature or extent of the obligations and burdens that we are imposing upon them, we should not think that we have discharged our duty by simply saying, 'If you can show reasonableness, you don't have a problem.'