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

by leave—I move opposition amendments (2), (3) and (5) on sheet 7046 together:

(2)   Schedule 1, item 19, page 7 (line 7), omit ", 7AA(2) or 7A(2)", substitute "or 7AA(2) or section 7A".

(3)   Schedule 1, item 22, page 7 (line 17), omit ", 7AA(1) or 7A(1)", substitute "or 7AA(1) or section 7A".

(5)   Schedule 1, item 65, page 12 (lines 25 and 26), omit "paragraph 7A(1)(b) or (c) or subsection 7A(2)", substitute "section 7A".

We also oppose schedule 1 in the following terms:

(1)   Schedule 1, item 18, page 6 (line 17) to page 7 (line 5), item TO BE OPPOSED.

The reason these amendments are being dealt with together but not with amendments (4) and (6) is that these are the bracket of amendments which deal with the extension of the grounds of discrimination to indirect discrimination on the basis of family responsibilities, whereas the other two opposition amendments deal with different topics. These amendments reflect the opposition's opposition to the extension of the prohibition of discrimination on the grounds of family responsibility. (1) is directed against the introduction of proposed section 7A2, while amendments (2), (3) and (5) are consequential to that.

As I indicated in the second reading debate, the coalition supports a prohibition against discrimination on the grounds of family responsibility. That is our position; it has always been our position. But we are concerned at the extension of the characterisation of discrimination, which would fall foul of that prohibition to include the very amorphous concept of indirect discrimination. As the bill puts it, imposing 'a condition, requirement or practice that has, or is likely to have, the effect of dis­advantaging persons with family respon­sibilities' carries a substantial risk of unintended consequences. The proposed extension would make employers liable in respect of working conditions or practices where there was no intention to discriminate and, indeed, where there was every intention not to discriminate.

In my second reading debate speech I gave the example of a company needing to reduce the hours of its casual workforce. That would have a disproportionate effect on workers with family responsibilities, because they seem to have more pressing financial commitments than those without family responsibilities. The scope of claims that could be arguably in breach of the proposed extended language of the statute is enormous because of the time, money and added worry that having a family necessarily entails.

To the objection that a reasonableness test applies, the answer is that the act places the onus of establishing reasonableness on the employer, whose compliance obligations would therefore extend to anticipating every effect of every work practice on those employees whose lives tend to be more complicated than their unencumbered colleagues, and the employer must respond in a way that does not preference men over women or vice versa or parents over workers without children. What the provision does, in effect, is to legislate for employers to implement a work-life balance scheme in anticipation of possible liability for discrimination. The proper way to address those issues is through the industrial relations system, where the interests of employers and employees can be managed consultatively and by reference to appropriate processes. This provision, however, is a blunt instrument which creates potentially boundless claims, and responsibility is sheeted home entirely to the employer.

As the Liberal senators on the Senate Standing Committee on Legal and Constitutional Affairs also noted:

There was no evidence presented to this inquiry of any systemic or widespread discrimination on the grounds of family responsibilities … which are not currently adequately addressed by existing legislation.

Finally and lastly, let me make this point: when this parliament imposes new burdens, obligations or responsibilities upon people, it is good legislative practice to make those burdens, obligations and responsibilities as clear as they can possibly be so that the people upon whom that imposition is made know what is required of them and can arrange their affairs and, in the case of a business or a workplace, arrange their practices to ensure that they are compliant with those obligations. hen you introduce an amorphous concept like indirectness, that as a matter of the very meaning of language adds an additional penumbra of uncertainty around the core concept. So it is that much more difficult for people to know whether or not their conduct is compliant. As we know, when we introduce a greater degree of uncertainty into a law, then it involves additional cost consequences with full compliance.

We, as legislators, need to be specific in telling people what we expect of them when we impose an obligation upon them. And to expand the scope of that obligation into the amorphous, almost category-less, concept of indirect breach of the legislation flies in the face of that very legislative objective. It flies in the face of good legislative practice.

For the reason the Liberal senators gave in the committee, and for the reasons of good legislative practice that I have recited, the opposition opposes this amendment. We look to the crossbenchers, particularly to Senator Xenophon—whose role as a champion of the interests of small business and small employers we all acknowledge and respect—to think very carefully about the potentially very serious consequences for small business were this amendment not to be carried.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I seek to make a few remarks concerning the contribution made by Senator Brandis about the opposition amendments.

A key feature of this bill is to enhance protections from family responsibilities discrimination. The Gillard government is committed to help Australian working families, and the proposed amendments in the bill will assist both men and women to balance work and family responsibilities without fear of penalty. The proposed amendments implement a recommendation of the Senate committee's 2008 inquiry into the Sex Discrimination Act, which was based on evidence from various groups, including business representatives and human rights advocates, which supported the need to improve the current provisions.

These amendments will provide greater consistency with existing protections and therefore help to simplify the current regulatory approach. The government, as I indicated earlier, will not support the opposition's amendments.

We are disappointed that the opposition is seeking to limit these new protections to direct discrimination only so that working parents will not be protected from indirect discrimination on the basis of their family responsibilities. We do not accept the opposition's claims that these provisions are unnecessary or will unnecessarily impose additional burdens on employers. The protections do not discriminate on the grounds of family responsibilities and only applies to reasonable working arrangements. An employer must have legitimate reasons for their actions so as to avoid unlawfully discriminating on the grounds of family responsibilities.

For example, the new provisions would only apply to reasonable working arrangements. As an example, it would not be reasonable for an employee in a restaurant to be unavailable at meal times due to family responsibilities, as being available during these periods is evidently an inherent requirement of the position. In contrast, it may constitute discrimination if an employer decided to deny a worker the opportunity to undertake specialised training solely because that worker had previously taken time off to care for their sick child.

The opposition has suggested that these provisions require an employer to take into account an employee's disposable income or cost of living before making a legitimate business decision. This is quite simply not the case.

I now seek to make a few remarks about how the new family responsibilities provision interacts with the Fair Work Act and National Employment Standards. The National Employment Standards, found in the Fair Work Act, provide the right to request flexible working arrangements. Such a request can only be refused on reasonable business grounds. The Fair Work Act also prohibits an employer from taking adverse action against an employee, which can include a range of employment decisions, on the basis of family responsibilities. These amendments will ensure that the SDA is consistent with these provisions by: firstly, affording the protections to men and women equally; secondly, applying to all areas of employment, not just termination decisions; and, finally, including indirect discrimina­tion.

Prohibiting discrimination on the basis of family responsibilities in the SDA will bolster the protections afforded by these provisions. It will reassure employees that they can balance their work and family responsibilities without fear of dismissal or discrimination.

In terms of what impact the family responsibilities will have on business, we say that discrimination against men and women on the grounds of family or carer res­ponsibilities is currently prohibited under the Fair Work Act 2009 and, of course, also under relevant state and territory legislation. The amendments will clarify the obligations of employers, making them consistent at the federal level. We argue that the bill does not impose an additional regulatory burden on business. Instead, they will operate to reduce the existing regulatory burden arising from inconsistencies in legislation found at the federal, state and territory levels, a fact recognised by the Senate committee in its report.

Lastly, the government's project to review and consolidate federal antidiscrimination laws into a single act will focus on removing unnecessary regulatory overlap and making the system more user friendly. Put simply, the proposed provisions do not require employers to take into account the living expenses of people with family responsibilities. I commend the bill to the Senate.

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

Parliamentary Secretary Feeney, the conduct you have described would be caught by a prohibition against direct discrimination; and, as I have been at pains to say, the opposition supports the prohibition of discrimination against people on the grounds of family responsibilities—as long as that is direct or intended. But the problem with your argument is that that is not what the proposed section 7A does. If I may take you to clause 2 of the proposed new section, this is how it defines discrimination:

For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person’s family responsibilities if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons with family responsibilities.

That is what it says.

Let us take a relatively small business. You may have the business owner or the business operator with a perfect record when it comes to treating people of both genders equally and with equal respect. He or she may be a business operator who goes out of their way to be careful of and considerate of the needs of his or her employees who have family responsibilities. This person might be a paragon of antidiscrimination practice. But in the business they might employ single people without family responsibilities and married people or people with children who do have family responsibilities. Because there is not an element of intention in your proposed provision—because it does not include what lawyers call a 'purpose test' but only an 'effects test'—this business operator, if he or she introduces a practice that has a differential effect on the single person or the person with family responsibilities or if it is even a practice which may not have any differential effect but is likely to have a differential effect, falls foul of the prohibition.

I think you have children, Parliamentary Secretary. I have children. Most of our colleagues do. Anyone who has any familiarity with family circumstances knows that the parents of children have particular obligations as a result of that fact alone that single people do not have; and therefore, a change in workplace arrangements is bound to affect employees with parental res­ponsibilities in a different way from the way it affects employees without parental responsibilities. Because of the legislative overreach in the proposed section 7A, the business operator whom I have postulated—this paragon of good antidiscrimination practice whose motives are as pure as can be and who would never intentionally discriminate against one of his or her employees because of family circum­stances—could still fall foul of it simply because of the fact of life that people with children live different lives and have different pressures and, therefore, have different workplace pressures from single people. That, if I may say so respectfully, Parliamentary Secretary, is unreasonable, and it does impose an unreasonable compliance burden on, in particular, all small business operators.

That is why, as well, as I said in the second reading debate, the opposition is also concerned that a provision like this could be used for a collateral purpose: to achieve an industrial relations outcome in prosecution of an industrial relations agenda, not for the bona fide purpose of preventing discriminatory practices in the workplace itself. We all know how legislative pro­hibitions, burdens or superadded obligations can be used for collateral purposes, and that also ought always to be avoided. Unless, Parliamentary Secretary, you can be reassured that no decision an employer ever makes will have a different effect on employees who have children and on employees who do not have the family responsibility of children, then such an employer will always potentially be in breach of this law.

How can it possibly be the case that it is good legislation to create a prohibition so wide that any employer could always be in breach of it merely because that employer employs parents and non-parents among the workforce? What it will have—and beware the law of unintended consequences—is a greater reluctance, particularly for small business operators, to employ people with family responsibilities in the first place but to mask their recruitment practices in such a way that it would never be apparent that that was their motive. The result of section 7A will be to entrench much deeper potential discrimination against people with family responsibilities because of the incompetence of the legislative overreach inherent in this section.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would like to ensure that it is on the record that the Greens will not be supporting any of the coalition's amendments. I realise that they are being moved in two blocks—or at least that is my understanding, Senator Brandis. There is no way that the Greens will be supporting these amendments. The justification being put forward by Senator Brandis on behalf of the coalition is simply an attempt to find any which way to get out of the fact that for far too long Australian working women in particular have wanted this parliament to accept that there is discrimination in our workplaces—whether it is based on gender, whether it is based on our family responsibilities or whether it is based on the age of a woman, particularly if she is in a family situation. It does happen, and that is why there was an inquiry into this issue. For far too long Australian women have been asking for this parliament to take this issue seriously, and to come in here and hear the opposition try to justify the idea that somewhere there should be a loophole for employers to continue to discriminate is absolutely appalling.

The other issue is the coalition's attempt to ensure that the Human Rights Commission does not get the support it needs to make sure that these new laws are monitored and looked after. We know what the coalition's view on the Human Rights Commission is: you hate it. You do absolutely everything you can to tear the commission down, whether through this bill or any other bill. You spend your entire time during Senate estimates ripping into the Human Rights Commission just because you feel like it and not because of anything it does wrong.

So let us not waste time here in the Senate. This is a piece of legislation that Australian working women in particular have been calling for for a very, very long time, and it is about time that we just got on with it, got it passed and got over this pettiness being put forward by the coalition.

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

I cannot let that pass. I thought, Senator Hanson-Young, that you were a lot smarter than that, if I may say so.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

Whatever gave you that impression?

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

I am just a generous soul, I suppose, Senator Fierravanti-Wells. First of all, let me for the record say that the Australian Human Rights Commission is and has always been supported by the coalition. But that does not mean that either we—or for that matter you, Senator Hanson-Young, as a parliamentarian with oversight of a Commonwealth agency—should not feel at liberty to criticise it at times, including in estimates. It is a rather shocking proposition that merely because a senator criticises an aspect of the operation of a Commonwealth agency in Senate estimates they hate that agency. That is a very, very foolish thing to say, Senator Hanson-Young, and not worthy of you.

May I return to the principal point here: it is very foolish indeed to describe the coalition's opposition to proposed section 7A of the bill as a 'loophole'. This is a proposition that says: 'We will overreach as far as we like in order to prohibit a practice, and because somebody points out to us that we have overreached they are therefore seeking to rely on a loophole. Their heart isn't in it. They don't really support the legislative intention.' Senator Hanson-Young, in case you were not listening, the coalition supports this bill.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Then stop playing with it.

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

Stop playing with it? That is what the Senate does, Senator Hanson-Young—it moves amendments to improve legislation where in the opinion of non-government senators that legislation could be improved in the committee stage. The fact is that we support this bill, but there are three particular aspects of it which form the subject of our amendments and which we think are injudicious and bad legislative practice and will in fact have the unintended consequence of making discrimination worse, not better. For that and only that reason, we are moving these amendments.

We believe that discriminating against people because of their gender, because of their age or because they have family responsibilities is wrong. There has never been any controversy about our commitment to that position. But our criticism of this proposed section and the reason we moved the four related amendments to delete it from the bill is that it is not a competent or effective way of dealing with discrimination. You do not competently attack the vice of discrimination in this society by treating as discrimination conduct which is not discrimination. To say that any decision of an employer which may have different effects or bearing upon people who have the responsibility of parents and people who do not have that responsibility is discrimination is foolish in the extreme.

We know from the ordinary experience of our lives that people who lead single lives and do not have family responsibilities lead different lives to those led by people who do have family responsibilities—in particular, responsibilities in relation to the care and nurture of children. We also know from the ordinary experience of our lives that what happens in the workplace will impinge upon people in those two different categories differently. That is just common sense. To identify the vice of discrimination in the fact that the experience or practice of the workplace might impinge differently upon people with family responsibilities and people without family responsibilities—which is inevitable in some circumstances—is to miss the point; it is to chase a shadow. e want to see those who would discriminate against people because of family responsibilities prohibited from doing so. You do not achieve that objective of social policy by in fact attacking something different which is so widespread and commonplace—that is, the fact that people who are single and people who have the responsibility of children lead different lives and have a different relationship with the workplace and that workplace practices might affect them differently.

It saddens me that you attack the motives of the opposition, who, as I have said all along, have championed antidiscrimination. We seek to improve this legislation by drawing it back to its core value and its core legislative objective, which is to make it against the law of this country to discriminate against people, not to make it against the law of this country to run a workplace in which you have single people and parents and therefore, inevitably in the ordinary course of human life, the reality that decisions will affect people in each of those two categories differently and then to say that is the vice of discrimination.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I think I comprehend Senator Brandis's concerns and let me now set to the task of allaying them. The government's position is that the key issue here is reasonableness and the test of reasonableness. As you would be aware, the Sex Discrimination Act has at section 7B:

Indirect discrimination: reasonableness test

(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

  (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

  (b) the feasibility of overcoming or mitigating the disadvantage; and

  (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

We say that in practical effect that reasonableness test means that, if, for example, a food factory owner arbitrarily changes the starting time for all employees from 9 am to 7.30 am, this may be found to constitute discrimination because it would disproportionately disadvantage those employees with young children. However, it would not constitute discrimination if that same owner made the same change because the food produced in the factory has a limited shelf life and needs to be distributed to shops as early as possible before it goes off, because this change is reasonable in the circumstances.

Further, using the example of an employer who, due to economic downturn, equally cuts the hours of all casual staff, some of whom have children and some of whom do not, this would not constitute discrimination on the basis of family responsibilities because the action applied equally to all of the employees and it was reasonable in the circumstances. The fact that the workers with children may find it harder to cope with the reduced income is not relevant to the actions of the employer; it is exactly the same situation as two employees having different sized mortgages or different lifestyles or, indeed, different spending habits. Put simply, we say the proposed provisions do not require employers to take into account the living expenses of people with family responsibilities. For example, employers will not be required to pay a worker who has a family and therefore higher expenses more for the same job than a worker who does not.

We say that section 7A relates to indirect discrimination against people with family responsibilities but indirect discrimination arises where an apparently mutual condition, requirement or practice has the effect of disadvantaging a particular group, in this case people with family responsibilities. We say that section 7B, the reasonableness test, means that common sense will prevail. We are not imposing further obligations upon the business community, let alone the small business community. You can be reassured that your concerns are dealt with through that reasonableness test.

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

In response to the parliamentary secretary—you are a parliamentary secretary, aren't you? I should not be calling you Minister? I have forgotten.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Parliamentary Secretary.

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

Pardon me, Senator Feeney. Through you, Madam Temporary Chairman, the problem with your response, Senator Feeney, is this: reasonableness is a defence. To use the example you have posited of an employer who changes the starting time from 9 am to 7.30 am, that will have a differential effect upon those of his employees who take their kids to school and those of his employees who do not have kids to take to school. I know this well. At 7.30 am on any day in Brisbane when parliament is not sitting I may be seen taking my boy to school. The dropping off of kids at school is, as most of us know, just part of the daily life of parents.

If the starting time were to be changed and it had a differential impact on parents and single people, then proceedings could be brought under the act against the employer. It would then be thrown upon the employer to demonstrate that his or her decision was a reasonable decision. o the issue of reasonableness only starts to arise once the employer, the small business person—and we have been talking, in the context of this debate, in particular about small businesses with narrow margins, uncertain cashflows and usually not very deep capital resources—is already in the toils of the act, has already been proceeded against and then, in the appropriate tribunal, must defend themselves. Reasonableness is not an a priori part of this legislative scheme. So it is very little comfort to a small business operator who finds themselves being pursued under your proposed section 7A—after potentially spending tens of thousands or even hundreds of thousands of dollars on lawyers that they cannot afford, and spending days upon end of worry and distraction from their business which they cannot afford—at last to prepare a defence to the claim: 'Well, this was reasonable in the circumstances. So reason­ableness, as I say, sounds fine—as a legal practitioner myself, I know all about advancing arguments and mounting defences on the basis of the reasonableness of the conduct—but those arguments and defences are raised once it is already, in essence, too late for the small business operator.

Secondly, reasonableness is itself, as we all know, a very porous, open-textured concept. So, if we are to observe the good legislative practice of giving people certainty about the nature or extent of the obligations and burdens that we are imposing upon them, we should not think that we have discharged our duty by simply saying, 'If you can show reasonableness, you don't have a problem.'

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that I would like to ask Senator Feeney to respond to some of the matters raised by Senator Brandis and what Senator Brandis says are unintended consequences. As I understand it, with proposed section 7A(2), you need to get over the threshold of showing that:

… the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons with family responsibilities.

I would have thought that would not be an easy threshold to show. You would need to show that the act of disadvantage is linked to that person's family responsibilities; that would be the burden of proof for someone seeking to bring a claim for discrimination. I would like the parliamentary secretary, Senator Feeney, to comment on that.

Secondly, Senator Brandis has raised a number of concerns in relation to issues of regulatory burden, if you like, and I want that to be explored in terms of instances where Senator Brandis says this would apply. The bill says in proposed section 7A(3):

This section has effect subject to sections 7B and 7D—

of the Sex Discrimination Act. Section 7B does take into account the issue of reasonableness. It takes into account:

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

(b) the feasibility of overcoming or mitigating the disadvantage; and

(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

So there is that aspect of it.

There is another issue that I wanted to raise—again, with both the government and the opposition. Before I do that, I should refer to section 7D of the Sex Discrimination Act; this proposed amendment that the opposition opposes refers to section 7D. Section 7D is headed 'Special measures intended to achieve equality'. It says:

A person may take special measures for the purpose of achieving substantive equality—

(Time expired)

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Senator Xenophon, before I go to government documents I am going to just say that your questions will be considered when debate on this bill resumes and to remind the chamber that we are dealing with opposition amendments (1), (2), (3) and (5) on sheet 4076 together. But the first question that we will put when we come to consider those amendments would be that schedule 1, item 18 stand as printed, and then the next question would be that amendments (2), (3) and (5) be agreed to.

Progress reported.