Matt O'Sullivan (WA, Liberal Party) Share this | Hansard source

As we've heard from several speakers from the coalition, the Australian Human Rights Commission (Costs Protection) Bill 2023 is a bill that should—should—be implementing recommendation 25 of the Respect@Work report. For those who are following and interested, recommendation 25 was:

Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth).

Section 570 of the Fair Work Act says, in summary, that in a case related to the Fair Work Act a party can only be ordered to pay the other party's legal costs if certain conditions are met. The party may be ordered to pay the costs only if (a) the court believes the party started the case just to cause trouble—vexatiously—or without a good reason, (b) the court believes the party did something unreasonable that caused the other party to incur extra costs, or (c) the party refused to take part in a related matter before the Fair Work Commission, and that refusal was unreasonable. The Respect@Work report made 55 recommendations across a range of areas, many of which have now become law with the coalition's support. But this bill takes an entirely different approach to what was recommended in the Jenkins report. It does not implement recommendation 25 from the Jenkins report. This bill does not implement a provision modelled on section 570 of the Fair Work Act. It deviates from what was recommended. It's not singly aimed at sexual harassment in the workplace either; instead, it applies to all federal discrimination matters.

For some reason, the Attorney-General has allowed for the possibility that, if even one part of a complaint is upheld, the individual or business may be required to cover the costs of the rejected portions of the complaint. This makes it extremely troublesome for people in this space. It will become a catch-all provision extending into matters far beyond the recommended scope and intent. The overreach here is of serious concern, grave concern. The costs that would be imposed upon individuals and organisations—without the necessary protections, without the narrow scope that is required, as recommended by the Jenkins report—puts this bill into the 'very dangerous' category. The Attorney-General is trying to dress up this bill under the guise of sexual harassment in the workplace, but it goes much broader than just sexual harassment. We know that this bill is aimed at more than that. It is another Labor bill that seeks to overreach.

Unfortunately, we're seeing this time and time again with legislation that comes into this place, whether or not it is through poor drafting. I think there are some occasions where it's an oversight. We can give them the benefit of the doubt. Maybe through their haste and folly they've rushed through legislation and the considerations haven't been properly thought out. And then there are moments, like those we're seeing with this bill, when it seems that there is an intended outcome for it to be overreaching and for it to go far beyond the scope that Jenkins recommended, and that's what we're seeing here.

My concern is that this bill will have unintended consequences, particularly for people of faith. It's difficult to give this government the benefit of the doubt when it comes to matters of religion and matters of religious freedom. We've already seen their first disastrous attempt when it comes to protecting religious freedoms. That attempt, quite rightly, led to a backlash from many sectors of the faith community. It has been quite an extraordinary display that the faith community have made and quite an extraordinary step that they have taken. By their nature, they turn the other cheek. By their nature, when it comes to people of faith and faith community groups, there's a particular predisposition to be meek and mild, but they were forceful in their opposition to the government's plans when it came to the religious discrimination bill.

The government, shamefully, have turned their backs on faith communities across Australia. I'm glad they're not implementing the bill that they did plan to bring before this place; the Prime Minister has ruled it out so far. I'm glad that that's not happening, because that would've been a retrograde step for people of faith and the faith community, particularly religious schools. I'm glad that that's not happening, but I am very disappointed, as are faith groups and faith communities across Australia of all persuasions—not just Christian but Muslim and Jewish—that the government isn't providing the protections through a sensible bill.

Faith leaders came together—again, across the broad spectrum of religious communities. Different faiths came together and made recommendations to the Attorney-General and to the Prime Minister on what could be done to provide those protections. They've put forward a very sensible, workable list, but this government has run away from that. They don't want to have the fight with the left within their party. That's shameful, because a commitment was made before the election to provide people of faith with the protection that is necessary. So I don't have a lot of faith in this government at all when it comes to matters of religious freedom.

Now, the Australian Christian Lobby, in their submission on this bill—and I want to have this recorded in the Hansardmade a very powerful point. They said:

The Bill will have disproportionate, extremely adverse impact on Christian and faith-based schools and educational institutions if, as the Government appears intent upon, the exemptions in the SDA are to be removed, or reduced so they have no value in enabling such institutions to operate in accordance with their ethos.

It would make discrimination law activism virtually cost and risk free for complainants.

I will just interject at that point: who then, therefore, bears the cost? It will, of course, be those organisations. They go on to say:

Australians may be financially ruined for things that should never have been alleged under discrimination legislation in the first place.

…   …   …

The result of the Bill in that context would be that Christian and faith-based schools and the like will become exposed to an entirely new range of discrimination claims under the SDA simply for operating in accordance with their ethos … Christian schools remain a highly popular choice among Australians. The problem is that their ideology does not fit with Labor's current ideology.

The burden of costs and the implications of this bill will be borne, in the instances that I've raised, by those within the faith community, particularly faith based schools. What does that mean? It means their insurance costs will go up. That, in turn, will mean, of course, that the fees that are paid by parents who are making the choice to send their children to that school will also go up. At a time of a cost-of-living crisis, this is the worst decision that could ever be made, on a cost basis. But when it comes to freedoms in this country, it is damaging to have a bill such as this.

This bill takes an entirely different approach, as I said at the start, to that which was recommended in the Jenkins report. Labor have used the recommendations of that report and have decided to add in some of their own formulation when it comes to this bill. Now, it's within their rights; they're the government. But we're belling the cat here. It is outrageous, what they're doing, by extending it and making it much broader and wider. Once again, Labor is targeting people of faith. The cost model proposed in this bill differs from the Australian Human Rights Commission's recommendations. As Senator Paul Scarr, my good friend and colleague, the chair of the committee that looked at this, said:

There is strong evidence that there are issues with the current system that need to be addressed. There is largely consensus in this regard. However, there is no consensus with respect to the costs model which should apply to proceedings commenced under Part IIB, Division 2 of the Australian Human Rights Commission Act1986 …

There are unintended consequence in this bill that the government have not adequately addressed. Therefore, the coalition stands in opposition to this bill because it does not advance protection from discrimination in the way that it should and in fact will increase the number of vexatious claims that are made against people. You can use the processes of the Human Rights Commission to frustrate, to add costs, to add burden to organisations that maybe you've got an ideological opposition to. It is reprehensible, and it is something that should not proceed.