Guy Barnett (Tasmania, Liberal Party) Share this | Hansard source

I would like to speak in support of the amendments that have been put by Senator Brandis and that Senator Ryan has just spoken to. I wanted to note upfront that some of the points that have been expressed are consistent with and relate to the Senate Legal and Constitutional Affairs Legislation Committee report, which was delivered in March—less than two months ago. That related to the dissenting report of the Liberal senators. In that report we referred to concerns we had about the overreach of the government's proposal with respect to family responsibilities. We said:

Liberal Senators do not support provisions of the Bill which would either expand the scope of the Sex Discrimination Act or broaden the definition of sexual harassment.

There was no evidence presented to the inquiry of any systemic or widespread discrimination on the grounds of responsibilities or circumstances of sexual harassment which are not currently adequately addressed by existing legislation. There was no evidence, that we could see, that was brought before the committee of inquiry that said that there were grounds of discrimination based on family respon­sibilities. The government clearly, in my view, have overreached in drafting the bill the way they have. The Liberal senators' dissenting report that was tabled in March does express concern about that. It also says, in 1.10, that we:

… are concerned that the combined effect of the recommendations relating to sexual harassment and family responsibilities would be to impose significant compliance costs on employers and would encourage and facilitate unfounded claims.

Whether they are unfounded or not, there will be claims made, and if they are without foundation they will cost a lot of money. They will cost small businesses, medium businesses and larger businesses—but small businesses in particular—money. Not only that; it will be a red-tape hassle for them. There is the concern that they will have to respond to these claims, take time out of their busy schedules and respond to those. We say in our report:

In the absence of any clear basis for these changes, or evidence of systemic failure of the current legislative regime, any implementation of these recommendations is not supported.

I am thrilled and very thankful that Senator Brandis—after considering this, and no doubt after talking to business people and liaising with his colleagues—has put this amendment forward, consistent with our views made in the dissenting Liberal senators' report. We have made a number of other observations in our report. Of course we support much of the bill; but we do not agree to expanding the scope.

Many witnesses appeared before our committee and many submissions were received. In fact, I have just noticed in this report that we actually received 21 submissions. There are the various groups who were very supportive, and others expressing different views. We had women's groups, Family Association of Australia, Office of the Anti-Discrimination Comm­issioner of Tasmania, Human Rights Law Resource Centre, Independent Education Union, Women's Legal Services New South Wales, Council on the Ageing, Uniting Church, Family Voice, Thomsons Lawyers, Equal Opportunity Commission Western Australia, National Seniors and a range of others. We thought long and hard about this, and I am disappointed that we have had to come to this juncture because our committee, the legal and constitutional affairs comm­ittee, commands a lot of respect and is held in high regard in this place and around the country. We get it right pretty much most of the time—and quite often we have unani­mous reports, and they are well received and well regarded. But on this occasion the Liberal senators provided a dissenting report, because we think that the government has just gone too far.

The bill was brought in on 30 September 2010 and it was on 8 February this year that the Senate agreed to extend the reporting date to 22 March, which is when we delivered this committee report. So we have expressed our views. The report is quite comprehensive. Can I just note that there were some 50-odd pages in the report, including our dissenting report.

More specifically, with respect to the amendment before us, I think there is a real problem here. I think there is a real problem for small business in particular. I think there is a problem for microbusiness. About 82 per cent of small businesses in Australia are microbusinesses—that is, five or fewer people in the business. I was formerly a member of the federal government's micro­business consultative committee, appointed by Peter Reith, prior to my time in the Senate. I established, owned and oper­ated my own small business and employed some 15 people, based in Hobart and Canberra, so I know what it is like. I was also an advocate for various small businesses and various small business organisations, including the Tasmanian Independent Retailers, the National Association of Retail Grocers of Australia and a range of other business groups. In particular, I tried to advocate for small businesses. So, in this regard, let me just say: they are being dudded. If this bill goes ahead in its current form, you will find that small business will be impacted. The men, women and families behind those small businesses who have their necks on the line, will be impacted, because the bill in its current form has unintended consequences.

I am afraid to say that the government has put forward no clear evidence or adequate arguments to the contrary, other than saying it should be 'reasonable'. That is not good enough, because of the way the bill is drafted; it is an effects test. It is quite clear that an employer or manager may not have any idea of the family responsibilities of an employee. The point is that, if they do know and are fully aware of the family respon­sibilities of the employee and if they treat that person differently, perhaps in a less favourable way than if they did not have those family responsibilities, clearly that is discrimination, and that is something the coalition and the parliament do not support. But if you have a situation where an employer has no idea of the particular family responsibilities and changes their work arrangements—the time to arrive at work, the lunchtime break, the time to depart and go home or make them work on a different day of the week—you cannot automatically say that they are being discriminatory. But they will be subject to the full force of the law. That means they will have to face an allegation and a claim. They will have to respond to that. That will take time and effort and resources. You have to remember that many of these small businesses—let's face it, most of them are microbusinesses—are in their businesses. We take our hats off to them for the time, effort and resources they do put in. They work long and hard. They are going to have to take time off to respond to those claims and prepare their own paperwork. They may employ a local solicitor or lawyer to act on their behalf, but whether or not they do, it will take time, effort and money—and, frankly, unfairly so.

As Senator Brandis noted, this bill first passed this parliament in 1992, so we are looking at nearly 20 years of success where the foundation legislation has been in force and effect and the parliament has had no issues or problems at all with family responsibilities being protected and people not being discriminated against based on their family responsibilities. That is what we are saying. What the government have done is go overboard. It is very disappointing that this has occurred. I am not sure whether it is a drafting error or oversight, or whether they got caught up by some of the submissions and claims made by some of the perhaps more left-oriented groups who are pushing for this type of legislation. I do not know, and I am not identifying any particular group or entity. Unless the way the bill is currently drafted is changed and these amendments are successful, clearly small business will be subject to the full force of the law, and the consequences will flow. That is really the problem and the effect of this legislation in its current form.

Having said all of that, I draw the attention of senators to this report, and in particular to the Liberal senators' dissenting report towards the end of the document. That is definitely worth reading because it gives you a little bit of background as to why Senator Brandis has chosen to move, on behalf of the coalition, these amendments to protect the interests of not only small business but the public. We are talking across-the-board here about providing good legislation that is transparent, accountable and properly drafted. I look forward in this committee stage to hearing the minister's response to the views expressed by Senator Brandis, Senator Ryan and me. I hope the minister sees reason and takes on board the concerns that have been expressed by coalition senators.