Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Hansard source

Again, I rise to support David Pocock's amendment. I think this is a very welcome amendment. I congratulate Senator Pocock on moving this amendment which addresses some of the concerns that were raised by numerous stakeholders to the inquiry we had in relation to this bill. It is difficult to fathom why the government will not listen to the legitimate concerns that were raised by the fiercely independent Australian Human Rights Commission in its submission. The Australian Human Rights Commission is desperately concerned that the cost regime in this bill doesn't draw any distinction between large corporates, the big four banks, Coles, Woolies on the one hand and a small cafe with maybe two or three employees on the other. There is absolutely no distinction drawn between the two.

What Senator Pocock's amendment is seeking to try to do is to say that an organisation that has the benefit of an in-house legal team, has the benefit of a corporate central office can pay legal fees et cetera. There should be, on top of these issues, no excuses for the big end of town, and Senator Pocock is saying it is reasonable to treat a small business, with respect to these cost issues, differently. To me that is incredibly sensible.

I want to give you a live example because this is the regime that you're proposing. If a claim is brought against a cafe owner with respect to any discrimination, not just sexual harassment as we have established, that cafe owner maybe tried to settle the claim beforehand, did their best to try and settle it. Maybe they didn't try and settle it because they didn't think they were at fault. They have gone to court, defended the claim, spent tens of thousands of dollars, maybe over $100,000—court is not cheap—and been successful. But the way this bill operates, especially when you read the explanatory memorandum, because they are the employer, even though they are a small business—no distinctions made between an employer with 10,000 employees or four or one—and even though they have been successful on every count, they can't claim their costs from the applicant who was unsuccessful on every count because there is a significant power differential—that is, they are an employer and the applicant was an employee. That is the way this act would work. Is that fair? Is the minister seriously saying that's fair? This would introduce this concept for the first time in the Australian legal system—