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

I want to go back to a number of issues that have caused the coalition very deep concern about this bill—that is what I have described as the bad legislative practice involved in imposing obligations of an uncertain, open-ended character upon citizens. It is fundamental to good law making—and we as the house of review ought to pride this as being one of our core values when we review bills that come from the House of Representatives, when we consider amendments and when we consider proposed bills—that we make the obligations and burdens that we impose upon citizens as narrow as possible but, even more importantly, as certain as possible. One of the deep concerns we in the opposition have is that this bill takes an obligation which is tolerably certain—existing section 7A of the Sex Discrimination Act has been part of the law of Australia since 1992 and there has been an accumulation of case law and precedent so that the concept of discriminating against employees by reason of their family responsibilities is tolerably well-known and clear—and, through either incompetence or indifference to the consequences that the bill would have, substitutes that tolerably certain obligation with a greatly uncertain obligation so that all it would take for a perfectly well-meaning, innocent, virtuous employer to find themselves in breach of the law is for a decision they make in the workplace to have a different effect upon people with family responsibilities than it has upon people without family responsibilities.

Examples of the vice of this are endless. For example, if an employer changed the hours of work for a perfectly sensible commercial reason, it may have a different bearing upon employees with kids than upon employees without kids. People who have children in their household, which as I said earlier I suspect are most people in the workforce in Australia these days, lead different lives. Because the nexus in proposed clause 7A(2) in the bill is so vague by the use of the preposition 'with' almost any commercial decision that any businessperson makes that has a bearing upon their employees could potentially be made unlawful by this foolish provision if the effects of that decision on people with children or other dependent relatives in the household were different from the effects on single people among that business's workforce. Let us take wages. We know that people with the responsibilities of children have less disposable income than people without children. The swinging single with the flamboyant lifestyle is a well-known subgroup of our population. People like that have great lives, lives free of responsibility to others. Because they do not have the responsibilities that a person in the workplace doing the same job but with kids has—who has to feed the kids, clothe the kids, pay school fees for the kids, outlay all of the other costs that having a child or children in the household involves—then of course their disposable income is much greater.

Let us say the employer decides to give a wage increase to his workers because he thinks: 'These are very good workers, these workers of mine. They're very industrious. My business has done very well because I've got a great workforce, so I'm going to give them all a wage increase.' And let us say the business employs two boilermakers at the same level and on the same salary. One of those boilermakers is a man with two kids and the other boilermaker who earns the same salary is a swinging single boilermaker who pockets most of his wage and spends it I hate to think how. And the employer says, 'I'm going to give you both a wage rise of 20 per cent.' What that means is that the swinging single's disposable income, as a percentage of his actual income, will increase by more than the disposable income of the boilermaker who is a parent. Now that would put that employer, as a result of that act of generosity towards his workforce, in breach of proposed section 7A(2) prima facie because that decision in the workplace of the employer would have a different effect upon the boilermaker who was a father than upon the boilermaker who kept most of his disposable income because he did not have children. How foolish is that?

And it is not as if the existing provisions of the Sex Discrimination Act are not good enough because section 7A of the act in its existing form completely covers the ground of conduct which ought to be made unlawful because it is an outright prohibition on discriminating against people by reason of their family responsibilities. That is the law. As people used to say some years ago during the famous republican referendum: if it ain't broke, don't fix it. This law is a good law. As a Liberal committed to antidiscrimination laws, I wholeheartedly support it and I do not want to see it ruined by legislative overreach by the legislature, in an artless and incompetent and gauche fashion, extending the law beyond its appropriate ambit.

Let us go back to my two boilermakers and their indulgent, generous employer. Were this legislation to be enacted, the employer may well be advised by his solicitor: 'I know you want to give your employees a raise, but I don't think you should do that because you've got employees with family responsibilities and employees without family responsibilities and, if you did, you'd be in breach of section 7A(2) of the Sex Discrimination Act, vouchsafed to us by the Gillard government and a negligent Senate.' And the employer would say to his lawyer: 'You've got to be kidding! No body of parliamentarians would be so stupid as to pass a law that in fact prevents me improving the conditions of my workforce merely because the effect on the lives of my staff might be different depending on whether they are single or have kids.' And yet that is what this would do. And then the government, which is being very badly advised I am bound to say—you need to get better lawyers, Senator Ludwig—comes back and says: 'No, that couldn't possibly happen because there's a reasonableness test. As long as it can be seen that the decision of the employer is reasonable then they're not in trouble.' That is all very well, but for the fact that there is a reverse onus. So the onus is cast upon the employer to show that their conduct is reasonable. It is absolutely bad and incompetent legislative practice to create a prima facie liability, a prima facie illegality, and say, 'That's all right, it doesn't matter that we've put you prima facie in breach of the laws of the Commonwealth because, if anybody takes you up on this, you'll have the opportunity to prove to the court that you acted reasonably.' That is not what parliament ought to be doing. That is not the way in which we make laws. We do not put people prima facie in breach of the law because they happen to run a business that employs both people with family responsibilities and people without. Of course, the biggest vice in this is that employers are going to think to themselves: 'My hands will be tied because any decision I make about wages and conditions or terms of employment, if it has a different bearing on people with or without family responsibilities, might land me in breach of the law. So I'm just not going to hire people with family responsibilities. I'm going to have an engineering shed composed entirely of swinging single boilermakers. How's that for discrimination!' Now, that would be discrimination. But, of course, it is very easy to mask discrimination in recruitment practices. As those of us who have practised in this area of the law would know—as I have done, albeit not very often but on occasions—it is much easier to mask discrimination in recruitment practices than it is in relation to conduct with existing employees.

This is the problem with legislative overreach: the law of unintended conseq­uences always applies. If you, my colleagues in the Senate, were to pass this law, what you would be doing is creating a disincentive for businesses, particularly for small businesses, to take on employees to whom this foolish proposed section 7A(2) might apply. For all of those reasons, the opposition opposes this amendment although we support the body of the bill.