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

Again, Minister, I recognise you did not have the benefit of going through the committee process or having looked at these provisions in detail. The relevant provision actually states that, in a case where an applicant is unsuccessful, the applicant may be ordered to pay the costs under certain circumstances. So let's take a small business going through a court proceeding. If the small business that is responding to the court proceeding is successful—potentially, on all counts—in order for that small business to actually obtain its legal costs to defend itself all of the following needs to apply: firstly, the party that is a respondent is successful in the proceedings—that's our small business successfully defending itself; secondly, the respondent does not have—and this is the relevant phrase, Minister—'a significant power advantage over the applicant'; and thirdly—this one needs to apply as well—'the respondent does not have significant financial or other resources, relative to the applicant'. The concern has been raised, especially given the wording in the explanatory statement, that in the usual course an employer would necessarily have, just by the very nature of the employment relationship, a significant power advantage over the applicant. The explanatory memorandum actually specifically states that an employer has a power advantage over an employee—how could it be otherwise?—and in nearly all cases would have a significant financial or other resources relative to the applicant. Again, how could it be otherwise?

It's nearly going to be impossible for a small business, potentially a sole trader, to assert their rights and actually get their costs that they've incurred when they've successfully defended a claim, which may not be sexual harassment; it could be any discrimination claim. So, Minister, I know you have a deep level of experience practising law. But I ask you to reflect on the actual wording now you've had an opportunity to look at the wording in the context of a small business that has successfully defended a claim, has been dragged through the court system, and potentially spent hundreds of thousands of dollars in legal costs diverted from the business. We're talking about a small business here; we are not talking about Westpac Banking Corporation or Coles. Isn't it the case that this wording in relation to this clause, 'a significant power advantage over the applicant', is deeply problematic in terms of it is going to be difficult for any employer to prove that they do not have the significant power advantage over the applicant. Indeed, the explanatory memorandum itself says one indicia of a power advantage is an employer-employee relationship. Does that not make that clause ineffective given the drafting and especially given the example given in the explanatory memorandum?