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

Thank you, Mr Acting Chairman.

The TEMPORARY CHAIRMAN: Mr Chairman is adequate.

Sorry, Mr Chair­man. I want to take up the debate where we left it last night and make the point that the addition of subsection (2) to the existing section 7A of the Sex Discrimination Act is entirely unnecessary in order to achieve the objectives of the act and is enormously burdensome in a regulatory sense. It is very bad legislative practice because it makes the obligations of an employer much less certain and much more vague than they are at the moment and, for that reason, creates very serious opportunities for abuse of the legislation in the form that the government would wish to see it for collateral purposes.

At the risk of going over some territory that was covered last night, let me remind the Senate of the structure of the legislation at the moment. Since 1992 the Sex Discrimination Act has prohibited discri­mination against people on the ground of family responsibilities. 'Family respons­ibilities' is a term defined by the act. It means:

in relation to an employee … responsibilities of the employee to care for or support:

  (a) a dependent child of the employee; or

  (b) any other immediate family member who is in need of care and support.

So any employee who has a dependent child, and I suspect that most employees in Australia have dependent children in their households, or who has the care of any other immediate family relatives—for example, a sick spouse, because it can be either temporary or permanent, or perhaps an elderly parent who might live with them or, whether they live with them or not, for whom they have the immediate respon­sibility of a carer—is within the scope of section 7A of the existing act. Let us be clear what we are talking about. I must confess I have not got out the statistics, but I think it would be uncontroversial to say that most employees in Australia have dependent family members, either children or other members of the household. Section 7A of the Sex Discrimination Act makes it unlawful to discriminate against an employee by reason of their family responsibilities. That has been the case since 1992, when section 7A was inserted into the act, and the coalition supports that provision. Indeed, the coalition supports the bill save for three matters, of which the matter we are debating at the moment is the most important. Section 7A, if I may remind the chamber of its terms, says:

For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if:

(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

(b) the less favourable treatment is by reason of—

Remember those words, 'by reason of''—

(i) the family responsibilities of the employee; or

(ii) a characteristic that appertains generally to persons with family responsibilities; or

(iii) a characteristic that is generally imputed to persons with family responsibilities.

I am not quite sure how far (ii) and (iii) of subclause (b) of section 7A take the matter, but, be that as it may, that is a very good law. What it says is that, if you are an employer, you cannot discriminate against an employee because they have family responsibilities in the sense defined. That is a very good law—it has worked well in this country since it was introduced nearly 20 years ago—and it is in no need of reform.

This—called by some commentators 'legislative overreach' or 'legislative creep'—is where parliaments go wrong. It happens when governments take a perfectly good law which is not shown to be in any need of reform and then expand its function way beyond what is necessary to serve the public policy purpose of the relevant legislative instrument. In this case, what the government is proposing to do is to keep section 7A largely in the terms in which it is currently stated and then to add a new subsection—that is, proposed section 7A(2), which would say:

For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's family responsibilities if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons with family responsibilities.

This is what lawyers call an 'effects test'; in other words, whether or not an employer intends to discriminate against a person because of their family responsibilities, the employer would be caught if there was an effect upon people with family responsibilities. Note the difference between the nexus here: section 7A in its existing form, which would be section 7A(1) in the form that the bill proposes, uses the phrase 'by reason of'. This means that there must be a direct relationship between the discrimination and the fact that the victim of the discrimination has family respons­ibilities, and that is absolutely right in the opposition's view. But proposed subsection (2) artlessly—and I use that word with all due respect to the legislative draughtsmen—does not use the phrase 'by reason of'; it uses the preposition 'with'. There is a world of difference between conduct that is prohibited by reason of a fact, matter or circumstance and conduct which affects people who may be defined as having—that is, as being 'with'—that fact matter or circumstance. 'By reason of' establishes a direct nexus; but the preposition 'with' is no sort of nexus at all.

To repeat the example that was given by Parliamentary Secretary Feeney last night, let us take an employee who has school children. This employee takes their children to school each morning, as most parents do. Under the existing law, if that employee's boss was to discriminate—by, as in the example posited by the parliamentary secretary, changing the starting time so as to make it impossible for the employee to take their children to school—against that employee by reason of their family responsibilities, in this case transporting their children to school, that would be against the law and a clear case of discriminating against someone by reason of their family responsibilities. But, under this newly proposed and expanded legislation, if the employer, with no intention to discriminate against employees with school-age children, changed the commencement time at work for a reason entirely unrelated to the family responsibilities of their employees but for perfectly sensible business reasons, because it had an effect upon employees with family responsibilities, they would prima facie be in breach of the law.

I do not know what advice you are getting from the adviser's box, Senator Xenophon, but it will not be as good as the advice that you will be getting from me about the legal effect of an effects test on a provision of this kind. The parliamentary secretary said last night: 'That's all right, because there is a reasonableness test in the existing act. So as long as the employer acted reasonably—for example, for sensible business reasons and not in order to discriminate against empl­oyees with family responsibilities—there wouldn't be a problem.' But there are two flaws in that argument. The first flaw is that it is premised on the law in its existing form—'by reason of'. Secondly, as I pointed out last night, the onus of proving reasonableness lies upon the employer, and that argument only takes place in the court or tribunal or before the Human Rights Commission.

So a perfectly innocent employer—an employer who might be a paragon of egalitarianism, who might have a perfect track record when it comes to treating all of their employees with fairness, who would never dream of discriminating against an employee by reason of their family responsibilities—could, perhaps for a collateral reason, find themselves hauled up before a court or tribunal and the subject of a complaint because an innocent decision they made for perfectly sensible business reasons has an effect on an employee with family responsibilities, not by reason of their family responsibilities but merely because there were family responsibilities. The difference between the preposition 'with' and the phrase 'by reason of' makes all the difference in a court of law. This employer—probably a small business operator—would then find themselves having to spend tens of thousands of dollars on lawyers to try to establish that they behaved reasonably. Under section 7C of the existing act, the onus of proof lies upon the employer to prove that their conduct was reasonable.

This is not law reform; this is obfuscation. This is taking a perfectly good law—a law that has bipartisan support in this parliament—and, either through inadver­tence or for some more sinister reason, expanding its reach so far that it destroys the legislative intent of the existing act. (Time expired)