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

And I don't accept the parallel with respect to whistleblowers. I think that's an absurd parallel, to be frank, Senator Waters. I do respect your interest in this matter, but whistleblowers are a totally different situation. You don't have whistleblowers of the type we're talking about here in a small business. It's a totally different situation that we're talking about here, where a small business has had to defend itself, it's had its day in court and won and then it can't get its costs. What Senator Pocock is proposing is that there be a distinction, which in the coalition's view would improve this bill. I still have objections to the cost regime contained in this bill, as the coalition does. But his amendments would make a serious improvement to this bill, because what the government's doing is simply imposing an additional burden on small business.

I spoke in this place in relation to the industrial relations reform that was moved by the government in relation to the definition of casual employee. I made the point that the definition of casual employee now runs to 2½ pages of a piece of legislation. A small business is expected to read 2½ pages to make a determination as to whether or not someone is a casual employee or not a casual employee. They've got to ask themselves 25 questions. What small businesses have the chance to do that under the cost-of-living crisis that they're operating in at the moment? No small business. This is just another whack at small business, and I can't fathom why the government isn't prepared to countenance the sensible amendments from Senator Pocock.

Senator Pocock has read the proceedings of the committee, and he's absolutely correct: everyone, from the Australian Human Rights Commission through to the Law Council of Australia, business bodies and other stakeholders, has raised this concern, that you're imposing this obligation upon small business. It's not right. It's not fair. It's not reasonable. That's especially the case when you consider these amendments in conjunction with the fact that the Australian Human Rights Commission is seriously concerned that the provisions in this act mean that claims in the Australian Human Rights Commission are less likely to settle. That is one of the concerns that the Australian Human Rights Commission has raised—that claims in the Australian Human Rights Commission are less likely to settle. Why? It's because one of the things which usually brings parties to the table to settle and engage in discussions is, 'I don't want to risk going to court because I might have costs awarded against me.'

The Australian Human Rights Commission is saying that the regulatory pendulum is swinging far too far the other way. That means that matters which should be conciliated and should be resolved in the Australian Human Rights Commission—for goodness sake, shouldn't we be trying to keep as many things out of the courts as possible and getting them resolved as quickly as possible? Isn't that in the interests of the Australian people? Yet the Australian Human Rights Commission is saying that one of the unintended consequences they're concerned about is that matters are less likely to be conciliated in the Australian Human Rights Commission.

The other matter the Australian Human Rights Commission raised was in relation to the fact that a court can't take into account or consider, under your cost regime—not the cost regime proposed by former commissioner Kate Jenkins, not the cost regime proposed by the Australian Human Rights Commission, but the cost regime that the Labor government is proposing, with the support of the Greens—whether or not a complainant engaged in the Australian Human Rights Commission process. Don't you think there should be something in this bill that actually says that, if you're going to go to court and putting everyone to the cost and expense of going to court, at the very least the court should be able to consider whether or not you as the complainant actually engaged in good faith in the Australian Human Rights Commission process to try and resolve it? But you don't even include that in the bill. So you're adding a further burden on small business—our poor old cafe owner, family business, fish and chip shop or whatever—which is holding on by its fingernails—

A further burden is being placed on them through a regime that the Australian Human Rights Commission does not support, Senator Waters—through you, Chair. I would have thought, in these areas, we should be listening very carefully to the concerns which have been raised by the Australian Human Rights Commission and the Law Council of Australia. It certainly raised some red flags in my mind, and I really do commend Senator Pocock for taking the time to go through the committee report, to look at the evidence, to consider the application of that evidence and then to come up with this amendment, which, from the coalition's perspective, is a welcome amendment. It does improve—