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

The Sex and Age Discrimination Legislation Amendment Bill 2010 arises principally from the govern­ment's response to the Senate Legal and Constitutional Affairs Committee's 2008 inquiry into the effectiveness of the Sex Discrimination Act in eliminating discrim­ina­tion and promoting gender equity. I should say that the elimination of discrimination and the promotion of gender equity has always been a core value of the Liberal Party and it is a value in which we have been pioneers in giving legislative effect.

The report's very broad recommendations were supported in part by the Liberal senators of the committee and the government's response aligned fairly closely with the position taken by Liberal senators. The bill would make four substantive amendments to the Sex Discrimination Act: to extend the act to ensure equal protection for men as well as for women; to broaden the prohibition on discrimination on the ground of family responsibilities to include indirect discrimination to both men and women in all areas of their work; to establish breast­feeding as a separate ground of prohibition of discrimination; and to strengthen the protections against sexual harassment in workplaces and schools to also include cyber bullying and electronic harassment. he amendments to the Age Discrimination Act provide for the establishment of an age discrimination commissioner within the Australian Human Rights Commission. This is intended to reflect the increasing needs of an ageing population and to address the factors that contribute to age discrimination in the workplace and the broader community.

The Senate committee reported on 1 March. The majority recommended that the bill be passed as drafted. However, Liberal members of the committee reiterated their dissenting findings in the 2008 report that there was no evidence of systemic discrimination on the basis of family respon­sibilities or circumstances of sexual harassment that are not adequately addressed by the existing legislation; that the combined effect of the proposed amendments relating to family responsibilities and sexual harassment would impose significant com­pliance costs; that the provisions are so drafted as to facilitate vexatious claims; and that there was no need to further extend the powers of the Australian Human Rights Commission. I will return to those grounds of concern in a moment. The Liberal senators supported the amendments relating to the appointment of a new office of age discrimination commissioner; the amend­ment which would give equal coverage to both men and women of the operation of the Sex Discrimination Act; the recognition of breastfeeding as a separate ground of prohibition of discrimination; and the amendments in relation to sexual harassment of students.

I want to say something in particular in relation to the prohibition of indirect discrimination on the ground of family responsibilities. The coalition takes the existing prohibition of direct discrimination very seriously, and we strongly support it. It is vital that those seeking to make a contribution to society, and especially those seeking to support their families, are not locked out of opportunities because of a misplaced fear that the demands that families place on workers will detract from their effectiveness or commitment. But the amendment proposed by this bill goes much further than that and has the potential for serious unintended consequences. In fact, I query whether this amendment should be advanced under the rubric of the Sex Discrimination Act at all or whether its proper place is in industrial relations legislation. Indeed, in the view of the coalition, what this amendment reflects is an attempt—perhaps a cynical attempt—to use the suite of discrimination legislation to advance industrial relations agenda which have no place in discrimination law at all.

The explanatory memorandum for the bill is particularly unenlightening. The justifi­cation offered for the amendment is this:

For example, an employer who refused to contemplate flexible working arrangements under any circumstances would particularly disadvan­tage people with family responsibilities.

So there we have it, Mr Acting Deputy President: the explanatory memorandum itself—against which, as you well know, the terms of the act would be construed by a court or tribunal—tells us that the intention of the drafter and the intention of the government in putting forward this piece of legislation would be to establish a new prohibition against any employer who refused to contemplate flexible working arrangements under any circumstances if a case could then be constructed that a flexible working arrangement in any circumstances might disadvantage people with family responsibilities. It is bogus and false and a legislative sleight of hand to suggest that that is an attempt to advance the cause of antidiscrimination. What it is an attempt to do, as I said, is to use the Sex Discrimination Act as a cover to promote greater inter­ference in the workplace, not in order to protect people from unlawful discrimination but in order to interfere with the legitimate interests of employers and employees in discussing and arriving consensually at decisions about the arrangements within that workplace.

The amendment would do much more than that. The example which I have cited from the explanatory memorandum is evidently wilfully blind to the true effect of the amendment because it ignores the strict liability it imposes. The bill provides that it will be discrimination if a condition, requirement or practice is imposed or proposed that has or is likely to have the effect of disadvantaging a person with family responsibilities. Thus, a struggling company with a casual workforce would be constrain­ed from cutting the hours of its casual employees because those with family responsibilities, with their inherently lower disposable incomes, could be left in a disadvantageous position relative to those with less pressing expenses. It does the cause of antidiscrimination law reform no good at all if the antidiscrimination laws of Australia are used to advance an industrial relations agenda that is in truth unrelated to the bona fide cause of antidiscrimination in a way that punishes, in particular, employers operating small businesses.

Accordingly, I foreshadow that the coalition will be moving amendments to the bill to omit clause 18—that is, the clause which seeks to extend discrimination on the ground of family responsibilities and to create a prohibition on what is called indirect discrimination—and to omit clause 59, which seeks to extend the prohibition of sexual harassment to include customers and contractors n that issue may I say that no case is made for making an employer responsible for unacceptable conduct by a customer of the employer or a contractor to the employer for which in truth the employer has no responsibility, no oversight, does not condone, sanction or direct and, in fact, has no capacity to control. That is once again an example of using a statute such as this within the category of discrimination law in order to impose inappropriate burdens on employers to govern conduct which is in fact beyond their control. We will also oppose, because we think it to be unnecessary, the extension of the Australian Human Rights Commission's powers proposed by clause 68.

Let me close by reiterating that just as the coalition has always supported the Sex Discrimination Act and has pioneered antidiscrimination legislation in this country ever since the days of the Fraser government, and at the state level as well, we will be supporting most of the measures in this bill. Australia's population is ageing but older workers are finding it difficult to re-enter the workforce and, anecdotally, to have their applications for employment considered on their merits. So there is a strong case, which we believe and sympathise with, for extending the provisions of the legislation to aged Australians and for creating the office of an age discrimination commissioner. But what we will not do is allow the anti­discrimination laws of Australia to be used as a pretext to impose burdens on business which are not truly prohibitions against discriminatory conduct but seek to impose an industrial relations agenda. If the govern­ment wants to amend the Workplace Relations Act to deal with these matters, that is the appropriate place for them to do so, and let us have the debate in that context. But let us not distort the purpose and objects of discrimination laws for such a purpose. And let us not impose additional, in many cases unendurable, burdens on employers—particularly employers conducting small businesses—under the bogus and false pretext of advancing antidiscrimination.

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

I rise today to contribute to the debate on the Sex and Age Discrimination Legislation Amendment Bill before us. I want to provide a bit of background to this legislation and then I intend to address some of the issues that Senator Brandis has just raised in his contribution. The bill before us today is the government's response to the inquiry by the 2008 Senate Standing Committee on Legal and Constitutional Affairs into the effectiveness of the 1984 Commonwealth Sex Discrimination Act. The inquiry was initiated by me back in 2008, as I had a belief that after 25 years of the Commonwealth Sex Discrimination Act it was time to undertake a review of that act to look at whether it was still effective and relevant and whether or not it needed to be modernised. So I am delighted to see this legislation before us today. Back in 2008 when we held that inquiry, we came up with quite a number of recommendations—43, in fact—as a result of the review of the act, and this legislation sees some of those recommendations being picked up by this government.

The Sex Discrimination Act 1984 was a landmark piece of legislation, as it formally made sex discrimination an illegal practice in Australia. It is amazing to think that the rights that we take for granted today were put in place only 30 years ago. In 2008, during the inquiry into the general relevance of the Sex Discrimination Act and its provisions, we received more than 80 submissions from organisations and individ­uals across the country. Submissions were overwhelmingly in support of the Sex Discrimination Act and its objectives—a stark contrast to the public attitude when the legislation was first introduced into parliament in the early 1980s. But while the Sex Discrimination Act 1984, in its current form, was appropriate at that time, especially since it was the first of its kind on a federal level—and very contentious, of course, back in the early 1980s—it did need to be reviewed and renewed as we headed into the 21st century. The inquiry found ways to improve the law, and while the bill before us today does not address all of those recommendations, it is this government's first steps in that response.

The Senate Legal and Constitutional Affairs Legislation Committee also conducted an inquiry into this current legislation, the Sex and Age Discrimination Legislation Amendment Bill 2010. This legislation received overwhelming support from those who made submissions to the inquiry, particularly from organisations that specialise and work in the area of discrimination. Nearly all of the submitters were supportive of schedule 1, which seeks to enhance the protections against sex discrimination and sexual harassment that are currently in the Sex Discrimination Act. This bill seeks to protect not only women but also men from sex discrimination. The Sex Discrimination Act in its current form implements certain provisions of CEDAW, the UN Convention on the Elimination of All Forms of Discrimination Against Women. This bill also extends the operation of the Sex Discrimination Act to men by including the definition of 'relevant international instrument', which would include a range of treaties that promote gender equality, such as the International Covenant on Civil and Political Rights. n important aspect of this bill is the creation of a separate ground for discrimination—breastfeeding. While dis­crim­ina­tion on the basis of breastfeeding is already prohibited as a subset of sex discrimination since it is only women who breastfeed, the Attorney-General's Depart­ment made clear its reasons for now establishing it as a separate ground for discrimination. The department stated that it will 'make it clearer that actions known as special measures can be taken by employers to address specific requirements of women who are breastfeeding'.

It is imperative that a modern Australia provides protection from discrimination to women who are breastfeeding. Breastfeeding mums all over the country experience discrimination, both direct and indirect, every day simply for trying to feed their newborns, whether it is at work, in shopping centres or in restaurants—as we found recently in Darwin. Discrimination against a breastfeeding mother can also occur subtly. For example, an employer can impose a requirement on employees that prevents them from taking any breaks for set periods during the day under any circumstances, which would consequently disadvantage a woman who needed to express her breastmilk. This bill will also ensure that women breastfeeding in areas of public life—such as accommodation, clubs, education, goods and services and facilities—cannot be prohibited from doing so.

While people are protected by the Sex Discrimination Act from discrimination due to family responsibilities, the act does so only in relation to termination of employ­ment and does not include indirect discrim­ination. The bill seeks to also address this by ensuring that, in employment generally, an employee cannot be discrim­inated against due to family responsibilities. The definition of 'family responsibilities' is expanded to mean the 'responsibilities of a person', rather than an employee, 'to care for or support a dependent child, or any other immediate family member who is in need of care and support'.

Employees have shown that discrimination does not have to be direct. The explanatory memorandum for this bill provides examples of both direct and indirect discrimination due to family responsibilities. Direct discrimination, for example, would occur where an employer terminates a person's employment before they return to work from parental leave, on the basis that they consider that the employee's new family responsibilities will interfere with their work. Indirect discrimination, on the other hand, would occur where an employer refuses to consider flexible working arrangements under any circumstances, which would particularly disadvantage people with family responsibilities.

This government has consistently recognised that a balance between work and family life is important. The Fair Work Act contains provisions for employers to help employees strike the right balance for all involved. The amendments to the Sex Discrimination Act to ensure employees are protected from discrimination due to family responsibilities complement the reforms made in other areas.

I want to turn for a minute to some of the comments that the previous speaker, Senator Brandis, made. I have great difficulty in understanding the logic behind Senator Brandis's comments. As a former industrial advocate who has worked in a workplace and dealt with discrimination against women in particular and women dealing with family responsibilities I have to say some of his comments indicate to me that he just does not get it. This is not an attempt to impose conditions on employers through some sort of backdoor facility that would otherwise be or should be in the Fair Work Act. This is about complementing and strengthening the rights of people to take action in a workplace where the fair work provisions and the industrial provisions may well be intact. There may well not be a breach of any industrial rights in the workplace; the Fair Work Act may well be shown to have been upheld in a number of these instances. But what this bill does is strengthen the rights of women in particular to take action under those industrial conditions if they believe they have been discriminated against because of their family responsibilities or because they are a woman.

I think that what Senator Brandis, from his comments, has failed to realise is that the two can actually work in a cooperative way; they can intersect correctly and jointly together. If you listened to Senator Brandis, you would think that you could have only one or the other—that, if you have industrial relations conditions and workplace conditions that can only apply to men and women in the workplace, it prevents you from taking any action under the Sex Discrimination Act. I think he is wrong. It may well be a point of intellectual argument, but I think it is fundamentally wrong.

I represented many, many women in the workplace over my industrial advocacy days where the industrial instrument was totally sound and the provisions under that industrial instrument were not broken but were upheld. Employers did what they believed was right according to the legal instrument under the Industrial Relations Act at the time. But, indirectly, their policies failed to recognise that women were not getting the rights they deserved, simply because of their gender, because they had caring responsibilities or because they wanted to be able to return to work and breastfeed. The industrial instrument of the day did not provide flexibility in taking breaks and did not allow an employer to accommodate that in the workplace.

If you are going to modernise the workplace, you have to understand that at times employers do actually welcome an intersection between the Sex Discrimination Act and the industrial relations conditions that occur in this country. I do not believe—contrary to what you heard Senator Brandis say—that it has to be one or the other. It has got to be both. At the end of the day, you have got to be able to provide that backup for people in their workplace if they are being victimised, discriminated against, harassed or bullied due to a provision under the Sex Discrimination Act. It does not just have to be: all complaints have to go through Fair Work Australia or all complaints have to go under an industrial relations umbrella. It does not work like that. Otherwise, we would put all Comcare provisions and all super­annuation provisions under one large single piece of legislation in this country. We do not do that. We have different pieces of legislation in the workplace that apply to different people under different circum­stances. As our report shows:

The existing prohibition of discrimination on the grounds of family responsibilities in the Sex Discrimination Act protects employees from termination of employment only. Further, the protection is limited to direct discrimination and does not include indirect discrimination.

The Senate Report recommended that the prohibition of discrimination on the grounds of family responsibilities should be broadened to include indirect discrimination and discrimination in all areas of employment …

My report back then went on to say:

Evidence to the committee overwhelmingly supported the view that the protection against discrimination on the basis of family responsibilities under the Act is too limited. The current protection is limited to direct discrim­ination resulting in termination. This excludes the most common types of discrimination on this ground such as employees being denied training or promotion, or being demoted or otherwise treated less favourably as a result of their family responsibilities.

So you see you can actually have a provision in an industrial agreement that provides for training and promotion, but the indirect discrimination may clearly show that not everyone in the workplace is getting equal access to those provisions. That is where I think Senator Brandis fundamentally lacked the link between the importance of this legislation to work with and alongside and to complement what is happening in the industrial arena. The committee in 2008 also noted:

… that a failure to strike an appropriate balance between work and caring responsibilities has negative consequences for the health of carers and for their workforce participation.

This is also important to overcoming some entrenched aspects of gender discrimination which continue to lock women into the role of carer and men into the role of breadwinner to the detriment of both sexes. The committee recommends broadening pro­tection against discrimination on this ground—specifically, both direct and indirect discrimination should be prohibited and protected and should extend to all aspects of employment not just termination.

So you have seen in both the 2008 report and in this report a restatement. As I said previously, you do not have to have just one or the other. The argument has not been raised in either of the Senate committee inquires that for some reason we should not extend this provision on the grounds of family responsibilities under this legislation and only tuck it under an industrial relations instrument. This is the first time I have heard this argument, interestingly from the coalition. It is not a position that was put by the majority of the submitters. The majority of submitters actually welcomed this legislation, welcomed the fact that the Sex Discrimination Act was going to be broadened and strengthened and certainly talked about the way it intersected and worked with any industrial agreement.

The amendments to the Sex Discrimination Act before us ensure that employees are protected against discrimination due to family responsibilities and complement the reforms made in other areas. When the Sex Discrimination Act was created in 1984 the technology we rely on today was not yet in use. Modern tech­nologies, such as the Internet and social networking sites, have many positive uses, but it is also another avenue where sexual harassment can occur. Using the Com­monwealth's power under section 51(v) this bill seeks to prohibit sexual harassment via new technologies.

Another important amendment includes extending protection against sexual harassment to students, regardless of their age, and removing the requirement that the person responsible for the harassment be at the same educational institution as the victim of the harassment. I want to comment on this because it was a flaw in the original act that we picked up in 2008. If you are a student at an educational institution, for example, under the original piece of legislation you were prevented from taking a claim of harassment against another student, a teacher or anyone else involved unless that person was at the same educational institution. It was a fundamental flaw in the first piece of legislation which we now see is picked up and corrected with this new bill. It will broaden the protection of students while they might be on excursions, sporting trips and camping trips or involved in interschool activities. A claim will now be able to be taken if it is needed. I think that is a welcome change and a modernising to what is happening in our society in terms of when harassment is occurring, how it is occurring and to whom it is occurring.

Also we have seen that workers will be protected from sexual harassment by customers, clients and other persons with whom they come into contact in connection with their work. For example, shop assistants will not have to put up with sexual harassment from a customer in their shop. Again this is not something that can be addressed under a provision under Fair Work and it is not something that can be addressed under an industrial relations instrument, because the customer is not party to the industrial relations instrument. Shop assistants should be able to make claims of harassment, bullying or discrimination against members of the general public they deal with. They will be protected by their industrial instrument to do that, but the actual complaint mechanism will be through this bill. The test for sexual harassment will also be amended so that harassment occurs if a reasonable person would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

This bill will continue to preserve the operation of state and territory laws to refuse to make, issue or alter an official record of a person's sex if a law of the state or territory requires the refusal because the person is married. The department advised the committee that the Marriage Act 1961 does not ban a person who is married from legally changing their sex, and that full consideration and consultation must be given to the effect this might have on birth, death and marriage laws in states and territories. The Australian government is, however, working with states and territories to consider the many issues raised by the Human Rights Commission in their concluding paper in this area.

This bill predominately establishes the dedicated position of Sex Discrimination Commissioner. This received strong support during the Senate inquiry. It establishes the office of the commissioner and outlines the terms and conditions in appointing the commissioner. Everyone in this country, regardless of age, should not be prevented from participating in society, including in the workplace.

Debate interrupted.