Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

We are debating opposition amendments (1), (2), (3) and (5) on sheet 7046. The question is that schedule 1, item 18 stand as printed.

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

Thank you, Mr Acting Chairman.

The TEMPORARY CHAIRMAN: Mr Chairman is adequate.

Sorry, Mr Chair­man. I want to take up the debate where we left it last night and make the point that the addition of subsection (2) to the existing section 7A of the Sex Discrimination Act is entirely unnecessary in order to achieve the objectives of the act and is enormously burdensome in a regulatory sense. It is very bad legislative practice because it makes the obligations of an employer much less certain and much more vague than they are at the moment and, for that reason, creates very serious opportunities for abuse of the legislation in the form that the government would wish to see it for collateral purposes.

At the risk of going over some territory that was covered last night, let me remind the Senate of the structure of the legislation at the moment. Since 1992 the Sex Discrimination Act has prohibited discri­mination against people on the ground of family responsibilities. 'Family respons­ibilities' is a term defined by the act. It means:

in relation to an employee … responsibilities of the employee to care for or support:

  (a) a dependent child of the employee; or

  (b) any other immediate family member who is in need of care and support.

So any employee who has a dependent child, and I suspect that most employees in Australia have dependent children in their households, or who has the care of any other immediate family relatives—for example, a sick spouse, because it can be either temporary or permanent, or perhaps an elderly parent who might live with them or, whether they live with them or not, for whom they have the immediate respon­sibility of a carer—is within the scope of section 7A of the existing act. Let us be clear what we are talking about. I must confess I have not got out the statistics, but I think it would be uncontroversial to say that most employees in Australia have dependent family members, either children or other members of the household. Section 7A of the Sex Discrimination Act makes it unlawful to discriminate against an employee by reason of their family responsibilities. That has been the case since 1992, when section 7A was inserted into the act, and the coalition supports that provision. Indeed, the coalition supports the bill save for three matters, of which the matter we are debating at the moment is the most important. Section 7A, if I may remind the chamber of its terms, says:

For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if:

(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

(b) the less favourable treatment is by reason of—

Remember those words, 'by reason of''—

(i) the family responsibilities of the employee; or

(ii) a characteristic that appertains generally to persons with family responsibilities; or

(iii) a characteristic that is generally imputed to persons with family responsibilities.

I am not quite sure how far (ii) and (iii) of subclause (b) of section 7A take the matter, but, be that as it may, that is a very good law. What it says is that, if you are an employer, you cannot discriminate against an employee because they have family responsibilities in the sense defined. That is a very good law—it has worked well in this country since it was introduced nearly 20 years ago—and it is in no need of reform.

This—called by some commentators 'legislative overreach' or 'legislative creep'—is where parliaments go wrong. It happens when governments take a perfectly good law which is not shown to be in any need of reform and then expand its function way beyond what is necessary to serve the public policy purpose of the relevant legislative instrument. In this case, what the government is proposing to do is to keep section 7A largely in the terms in which it is currently stated and then to add a new subsection—that is, proposed section 7A(2), which would say:

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.

This is what lawyers call an 'effects test'; in other words, whether or not an employer intends to discriminate against a person because of their family responsibilities, the employer would be caught if there was an effect upon people with family responsibilities. Note the difference between the nexus here: section 7A in its existing form, which would be section 7A(1) in the form that the bill proposes, uses the phrase 'by reason of'. This means that there must be a direct relationship between the discrimination and the fact that the victim of the discrimination has family respons­ibilities, and that is absolutely right in the opposition's view. But proposed subsection (2) artlessly—and I use that word with all due respect to the legislative draughtsmen—does not use the phrase 'by reason of'; it uses the preposition 'with'. There is a world of difference between conduct that is prohibited by reason of a fact, matter or circumstance and conduct which affects people who may be defined as having—that is, as being 'with'—that fact matter or circumstance. 'By reason of' establishes a direct nexus; but the preposition 'with' is no sort of nexus at all.

To repeat the example that was given by Parliamentary Secretary Feeney last night, let us take an employee who has school children. This employee takes their children to school each morning, as most parents do. Under the existing law, if that employee's boss was to discriminate—by, as in the example posited by the parliamentary secretary, changing the starting time so as to make it impossible for the employee to take their children to school—against that employee by reason of their family responsibilities, in this case transporting their children to school, that would be against the law and a clear case of discriminating against someone by reason of their family responsibilities. But, under this newly proposed and expanded legislation, if the employer, with no intention to discriminate against employees with school-age children, changed the commencement time at work for a reason entirely unrelated to the family responsibilities of their employees but for perfectly sensible business reasons, because it had an effect upon employees with family responsibilities, they would prima facie be in breach of the law.

I do not know what advice you are getting from the adviser's box, Senator Xenophon, but it will not be as good as the advice that you will be getting from me about the legal effect of an effects test on a provision of this kind. The parliamentary secretary said last night: 'That's all right, because there is a reasonableness test in the existing act. So as long as the employer acted reasonably—for example, for sensible business reasons and not in order to discriminate against empl­oyees with family responsibilities—there wouldn't be a problem.' But there are two flaws in that argument. The first flaw is that it is premised on the law in its existing form—'by reason of'. Secondly, as I pointed out last night, the onus of proving reasonableness lies upon the employer, and that argument only takes place in the court or tribunal or before the Human Rights Commission.

So a perfectly innocent employer—an employer who might be a paragon of egalitarianism, who might have a perfect track record when it comes to treating all of their employees with fairness, who would never dream of discriminating against an employee by reason of their family responsibilities—could, perhaps for a collateral reason, find themselves hauled up before a court or tribunal and the subject of a complaint because an innocent decision they made for perfectly sensible business reasons has an effect on an employee with family responsibilities, not by reason of their family responsibilities but merely because there were family responsibilities. The difference between the preposition 'with' and the phrase 'by reason of' makes all the difference in a court of law. This employer—probably a small business operator—would then find themselves having to spend tens of thousands of dollars on lawyers to try to establish that they behaved reasonably. Under section 7C of the existing act, the onus of proof lies upon the employer to prove that their conduct was reasonable.

This is not law reform; this is obfuscation. This is taking a perfectly good law—a law that has bipartisan support in this parliament—and, either through inadver­tence or for some more sinister reason, expanding its reach so far that it destroys the legislative intent of the existing act. (Time expired)

Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

I begin on the point that my colleague Senator Brandis finished on. I have looked through the government's second reading speech on this bill, and I am struck by the fact that there is no case for change here. As Senator Brandis has outlined, this law functions well and it functions with cross-party support. I have read parts of the submissions from the committee but I have not read of a concern that it is not doing what it was intended, that it is not effectively protecting the rights of men and women around Australia, and particularly those with family respon­sibilities. No case has been established to do what Senator Brandis outlined—which was to dramatically widen the potential impact of the law.

Laws that have effects tests are quite dangerous. Senator Brandis outlined that it can be a case of legislative overreach. I would put to the chamber that a law that could see a great number of people—as Senator Brandis describes 'paragons of egalitarianism'—being drawn before a commission, a tribunal or a court completely unaware that what they may have done may now be in breach of the law is actually a reflection on the law itself, not necessarily the persons being drawn before it.

There is a particular concern that I have here, which is that I see this as yet another example of a law drafted by the Labor government that is fine for large businesses. It may be fine if you are BHP, Coles or Woolworths, with a large human resources department, processes in place that actually allow for staff to be moved around and a lot more capacity to move your staff around in order to take into account family responsibilities—to be a good employer. But, while we all support a law that prevents intentional discrimination—'by reason of', as Senator Brandis outlined—I have concerns about a law that dramatically limits the capacity of a small business with two or three employees to undertake what would otherwise be legitimate management of resources, where there was no allegation that someone was being discriminated against by reason of their family responsibilities. I think this is yet another example of the Labor Party's misunderstanding or, in this case, complete lack of understanding of the management burdens, the red tape burdens, that government imposes on smaller businesses.

I have worked in large businesses and I have worked in small businesses. It is very easy when you work for a company with thousands of employees for employers to accommodate the needs of staff—and they can be due to personal circumstance or family circumstance. The public sector is a classic example where flexible work arrange­ments are much easier to accommodate. It is much harder for a cafe employing two or three people to do so. It does not necessarily mean that, because a wish cannot be accommodated, that person is being discriminated against by reason of their family responsibilities. But to draw the law this broad and to potentially draw those people into the net because they do not have the means to comply is, I think, a step too far. Whether it is an unintended consequ­ence, I do not know. But I think it is a classic case of a complete lack of understanding of those resource constraints. I also have a concern that was expressed also during the debate on the Fair Work bills. That is: laws that are, by their nature, vague and difficult to comply with—even though it might be only a few words, even though it might seem like a fairly insignificant test to many in this place—impose a much more significant compliance burden than the words thems­elves would convey, because of the very vagueness of their terms. There could be a lack of certainty on the part of a business owner or a manager in the application of this new section proposed by the Labor government. If you do not know all the circumstances of an employee, how do you know the possible effects on their family circumstances of a decision you might make? I do not think it is reasonable. We have privacy laws. We do not necessarily want employers to be able to demand all the information about the family circumstances of their employees. But how can we judge them on the effect of their decisions if there is no allegation whatsoever that that person is being discriminated against because of their family responsibilities? I do not think these views are unreasonable, because I do not think that anyone in this parliament would say that there should be a capacity to discriminate because of family respon­sibilities. I do not, and I think that people of my generation, who went to school in the 1980s and finished university in the 1990s, come from a very different world. We cannot even contemplate a situation where women do not have the same opportunities as we do.

Australia has undergone quite dramatic change, and this law—which, as Senator Brandis outlined, is working very effectively and is supported across the parliament—is one of the reflections of that change. We are not proposing anything that would water it down. But a law that creates this degree of vagueness, a law that could unintentionally drag a lot of people into a net that is not based on the intent of their conduct, that is not based on discriminating against someone because of their family responsibilities, is, in fact, not a good law.

There are other ways in which we can go about supporting families, and governments of both persuasions have done so. But I think there is a limit to what we can legitimately expect our small businesses to undertake. This reflects a number of the concerns with the Fair Work bills. Under the Fair Work Act there is a right to request to have considered legitimate work arrangements because of family responsibilities, but again the clause is so vague. Even industrial relations lawyers and barristers cannot tell me what it means, because everyone is waiting to find out what the various rulings of Fair Work Australia—and then probably the Federal Court after that—actually mean in practice. We know that those laws are going to be expanded and expounded as more cases are brought before the bench in both instances. This government cannot even set up a Fair Work assistance line for a small business to ring when they want to ask, 'How much do I have to pay my employee?' With the modernisation of awards happening mainly outside my home state of Victoria, and because of the unique situation Victoria was in with respect to industrial relations for many years, a small business cannot ring up and ask, 'How much do I actually pay the assistant in the pharmacy?' or, 'How much do I pay the waiter in the cafe?' Fair Work Australia does not give an answer or, if you wait on hold for a couple of hours, it will give you a vague answer. It will not give you an answer to which it is binding, and that answer cannot be relied upon if you are subsequently found, despite having acted in all good faith, to have acted incorrectly.

Senator Ludwig interjecting—

My point simply is, Senator Ludwig, that the creation of vague aspirational language in legislation, which happens more in the United States than it does here, is not something that has traditionally come out of the Australian parliament. We have tended to apply tests, as Senator Brandis outlined, that are more about purpose than effects. I do not necessarily like them in competition law, as I am sure some of my colleagues know after debates we have had over the last few weeks. But in this case, vague aspirational language does not do anything to advance the cause and could actually serve to undermine support if people who are acting in good faith and are virtuous employees in every sense are being inadvertently dragged in because of a vaguely drafted section inserted in the act.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I would like to speak in support of the amendments that have been put by Senator Brandis and that Senator Ryan has just spoken to. I wanted to note upfront that some of the points that have been expressed are consistent with and relate to the Senate Legal and Constitutional Affairs Legislation Committee report, which was delivered in March—less than two months ago. That related to the dissenting report of the Liberal senators. In that report we referred to concerns we had about the overreach of the government's proposal with respect to family responsibilities. We said:

Liberal Senators do not support provisions of the Bill which would either expand the scope of the Sex Discrimination Act or broaden the definition of sexual harassment.

There was no evidence presented to the inquiry of any systemic or widespread discrimination on the grounds of responsibilities or circumstances of sexual harassment which are not currently adequately addressed by existing legislation. There was no evidence, that we could see, that was brought before the committee of inquiry that said that there were grounds of discrimination based on family respon­sibilities. The government clearly, in my view, have overreached in drafting the bill the way they have. The Liberal senators' dissenting report that was tabled in March does express concern about that. It also says, in 1.10, that we:

… are concerned that the combined effect of the recommendations relating to sexual harassment and family responsibilities would be to impose significant compliance costs on employers and would encourage and facilitate unfounded claims.

Whether they are unfounded or not, there will be claims made, and if they are without foundation they will cost a lot of money. They will cost small businesses, medium businesses and larger businesses—but small businesses in particular—money. Not only that; it will be a red-tape hassle for them. There is the concern that they will have to respond to these claims, take time out of their busy schedules and respond to those. We say in our report:

In the absence of any clear basis for these changes, or evidence of systemic failure of the current legislative regime, any implementation of these recommendations is not supported.

I am thrilled and very thankful that Senator Brandis—after considering this, and no doubt after talking to business people and liaising with his colleagues—has put this amendment forward, consistent with our views made in the dissenting Liberal senators' report. We have made a number of other observations in our report. Of course we support much of the bill; but we do not agree to expanding the scope.

Many witnesses appeared before our committee and many submissions were received. In fact, I have just noticed in this report that we actually received 21 submissions. There are the various groups who were very supportive, and others expressing different views. We had women's groups, Family Association of Australia, Office of the Anti-Discrimination Comm­issioner of Tasmania, Human Rights Law Resource Centre, Independent Education Union, Women's Legal Services New South Wales, Council on the Ageing, Uniting Church, Family Voice, Thomsons Lawyers, Equal Opportunity Commission Western Australia, National Seniors and a range of others. We thought long and hard about this, and I am disappointed that we have had to come to this juncture because our committee, the legal and constitutional affairs comm­ittee, commands a lot of respect and is held in high regard in this place and around the country. We get it right pretty much most of the time—and quite often we have unani­mous reports, and they are well received and well regarded. But on this occasion the Liberal senators provided a dissenting report, because we think that the government has just gone too far.

The bill was brought in on 30 September 2010 and it was on 8 February this year that the Senate agreed to extend the reporting date to 22 March, which is when we delivered this committee report. So we have expressed our views. The report is quite comprehensive. Can I just note that there were some 50-odd pages in the report, including our dissenting report.

More specifically, with respect to the amendment before us, I think there is a real problem here. I think there is a real problem for small business in particular. I think there is a problem for microbusiness. About 82 per cent of small businesses in Australia are microbusinesses—that is, five or fewer people in the business. I was formerly a member of the federal government's micro­business consultative committee, appointed by Peter Reith, prior to my time in the Senate. I established, owned and oper­ated my own small business and employed some 15 people, based in Hobart and Canberra, so I know what it is like. I was also an advocate for various small businesses and various small business organisations, including the Tasmanian Independent Retailers, the National Association of Retail Grocers of Australia and a range of other business groups. In particular, I tried to advocate for small businesses. So, in this regard, let me just say: they are being dudded. If this bill goes ahead in its current form, you will find that small business will be impacted. The men, women and families behind those small businesses who have their necks on the line, will be impacted, because the bill in its current form has unintended consequences.

I am afraid to say that the government has put forward no clear evidence or adequate arguments to the contrary, other than saying it should be 'reasonable'. That is not good enough, because of the way the bill is drafted; it is an effects test. It is quite clear that an employer or manager may not have any idea of the family responsibilities of an employee. The point is that, if they do know and are fully aware of the family respon­sibilities of the employee and if they treat that person differently, perhaps in a less favourable way than if they did not have those family responsibilities, clearly that is discrimination, and that is something the coalition and the parliament do not support. But if you have a situation where an employer has no idea of the particular family responsibilities and changes their work arrangements—the time to arrive at work, the lunchtime break, the time to depart and go home or make them work on a different day of the week—you cannot automatically say that they are being discriminatory. But they will be subject to the full force of the law. That means they will have to face an allegation and a claim. They will have to respond to that. That will take time and effort and resources. You have to remember that many of these small businesses—let's face it, most of them are microbusinesses—are in their businesses. We take our hats off to them for the time, effort and resources they do put in. They work long and hard. They are going to have to take time off to respond to those claims and prepare their own paperwork. They may employ a local solicitor or lawyer to act on their behalf, but whether or not they do, it will take time, effort and money—and, frankly, unfairly so.

As Senator Brandis noted, this bill first passed this parliament in 1992, so we are looking at nearly 20 years of success where the foundation legislation has been in force and effect and the parliament has had no issues or problems at all with family responsibilities being protected and people not being discriminated against based on their family responsibilities. That is what we are saying. What the government have done is go overboard. It is very disappointing that this has occurred. I am not sure whether it is a drafting error or oversight, or whether they got caught up by some of the submissions and claims made by some of the perhaps more left-oriented groups who are pushing for this type of legislation. I do not know, and I am not identifying any particular group or entity. Unless the way the bill is currently drafted is changed and these amendments are successful, clearly small business will be subject to the full force of the law, and the consequences will flow. That is really the problem and the effect of this legislation in its current form.

Having said all of that, I draw the attention of senators to this report, and in particular to the Liberal senators' dissenting report towards the end of the document. That is definitely worth reading because it gives you a little bit of background as to why Senator Brandis has chosen to move, on behalf of the coalition, these amendments to protect the interests of not only small business but the public. We are talking across-the-board here about providing good legislation that is transparent, accountable and properly drafted. I look forward in this committee stage to hearing the minister's response to the views expressed by Senator Brandis, Senator Ryan and me. I hope the minister sees reason and takes on board the concerns that have been expressed by coalition senators.

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

I want to go back to a number of issues that have caused the coalition very deep concern about this bill—that is what I have described as the bad legislative practice involved in imposing obligations of an uncertain, open-ended character upon citizens. It is fundamental to good law making—and we as the house of review ought to pride this as being one of our core values when we review bills that come from the House of Representatives, when we consider amendments and when we consider proposed bills—that we make the obligations and burdens that we impose upon citizens as narrow as possible but, even more importantly, as certain as possible. One of the deep concerns we in the opposition have is that this bill takes an obligation which is tolerably certain—existing section 7A of the Sex Discrimination Act has been part of the law of Australia since 1992 and there has been an accumulation of case law and precedent so that the concept of discriminating against employees by reason of their family responsibilities is tolerably well-known and clear—and, through either incompetence or indifference to the consequences that the bill would have, substitutes that tolerably certain obligation with a greatly uncertain obligation so that all it would take for a perfectly well-meaning, innocent, virtuous employer to find themselves in breach of the law is for a decision they make in the workplace to have a different effect upon people with family responsibilities than it has upon people without family responsibilities.

Examples of the vice of this are endless. For example, if an employer changed the hours of work for a perfectly sensible commercial reason, it may have a different bearing upon employees with kids than upon employees without kids. People who have children in their household, which as I said earlier I suspect are most people in the workforce in Australia these days, lead different lives. Because the nexus in proposed clause 7A(2) in the bill is so vague by the use of the preposition 'with' almost any commercial decision that any businessperson makes that has a bearing upon their employees could potentially be made unlawful by this foolish provision if the effects of that decision on people with children or other dependent relatives in the household were different from the effects on single people among that business's workforce. Let us take wages. We know that people with the responsibilities of children have less disposable income than people without children. The swinging single with the flamboyant lifestyle is a well-known subgroup of our population. People like that have great lives, lives free of responsibility to others. Because they do not have the responsibilities that a person in the workplace doing the same job but with kids has—who has to feed the kids, clothe the kids, pay school fees for the kids, outlay all of the other costs that having a child or children in the household involves—then of course their disposable income is much greater.

Let us say the employer decides to give a wage increase to his workers because he thinks: 'These are very good workers, these workers of mine. They're very industrious. My business has done very well because I've got a great workforce, so I'm going to give them all a wage increase.' And let us say the business employs two boilermakers at the same level and on the same salary. One of those boilermakers is a man with two kids and the other boilermaker who earns the same salary is a swinging single boilermaker who pockets most of his wage and spends it I hate to think how. And the employer says, 'I'm going to give you both a wage rise of 20 per cent.' What that means is that the swinging single's disposable income, as a percentage of his actual income, will increase by more than the disposable income of the boilermaker who is a parent. Now that would put that employer, as a result of that act of generosity towards his workforce, in breach of proposed section 7A(2) prima facie because that decision in the workplace of the employer would have a different effect upon the boilermaker who was a father than upon the boilermaker who kept most of his disposable income because he did not have children. How foolish is that?

And it is not as if the existing provisions of the Sex Discrimination Act are not good enough because section 7A of the act in its existing form completely covers the ground of conduct which ought to be made unlawful because it is an outright prohibition on discriminating against people by reason of their family responsibilities. That is the law. As people used to say some years ago during the famous republican referendum: if it ain't broke, don't fix it. This law is a good law. As a Liberal committed to antidiscrimination laws, I wholeheartedly support it and I do not want to see it ruined by legislative overreach by the legislature, in an artless and incompetent and gauche fashion, extending the law beyond its appropriate ambit.

Let us go back to my two boilermakers and their indulgent, generous employer. Were this legislation to be enacted, the employer may well be advised by his solicitor: 'I know you want to give your employees a raise, but I don't think you should do that because you've got employees with family responsibilities and employees without family responsibilities and, if you did, you'd be in breach of section 7A(2) of the Sex Discrimination Act, vouchsafed to us by the Gillard government and a negligent Senate.' And the employer would say to his lawyer: 'You've got to be kidding! No body of parliamentarians would be so stupid as to pass a law that in fact prevents me improving the conditions of my workforce merely because the effect on the lives of my staff might be different depending on whether they are single or have kids.' And yet that is what this would do. And then the government, which is being very badly advised I am bound to say—you need to get better lawyers, Senator Ludwig—comes back and says: 'No, that couldn't possibly happen because there's a reasonableness test. As long as it can be seen that the decision of the employer is reasonable then they're not in trouble.' That is all very well, but for the fact that there is a reverse onus. So the onus is cast upon the employer to show that their conduct is reasonable. It is absolutely bad and incompetent legislative practice to create a prima facie liability, a prima facie illegality, and say, 'That's all right, it doesn't matter that we've put you prima facie in breach of the laws of the Commonwealth because, if anybody takes you up on this, you'll have the opportunity to prove to the court that you acted reasonably.' That is not what parliament ought to be doing. That is not the way in which we make laws. We do not put people prima facie in breach of the law because they happen to run a business that employs both people with family responsibilities and people without. Of course, the biggest vice in this is that employers are going to think to themselves: 'My hands will be tied because any decision I make about wages and conditions or terms of employment, if it has a different bearing on people with or without family responsibilities, might land me in breach of the law. So I'm just not going to hire people with family responsibilities. I'm going to have an engineering shed composed entirely of swinging single boilermakers. How's that for discrimination!' Now, that would be discrimination. But, of course, it is very easy to mask discrimination in recruitment practices. As those of us who have practised in this area of the law would know—as I have done, albeit not very often but on occasions—it is much easier to mask discrimination in recruitment practices than it is in relation to conduct with existing employees.

This is the problem with legislative overreach: the law of unintended conseq­uences always applies. If you, my colleagues in the Senate, were to pass this law, what you would be doing is creating a disincentive for businesses, particularly for small businesses, to take on employees to whom this foolish proposed section 7A(2) might apply. For all of those reasons, the opposition opposes this amendment although we support the body of the bill.

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

I want to put some questions to the government in relation to this. I have been listening carefully to Senator Brandis and I have had an opportunity to discuss this matter further with him. And I am, of course, grateful to the government for the discussions I have had with them in relation to this. Let me make it clear, so that there is no misunderstanding for anyone who is listening or who reads the Hansard in relation to this, that proposed section 7A(1) is a reworking of the current section 7A of the Sex Discrimination Act and makes it very clear that, if a person discriminates against another person on the ground of the aggrieved person's family responsibilities, that is an offence, that is prohibited—as it should be. Also, it ought to be read in the context of section 7B in that, with indirect discrimination, there is a reasonableness test, and in section 7C of the act there is effectively a reverse onus of proof. Normally, a reverse onus of proof is something you would be quite cautious about, but I think it is appropriate to have a reverse onus of proof in the scheme of this legislation in order for the legislation to be effective. But here we have a situation, with subclause (2), where what is proposed is that, if a person discriminates against another 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, there is a reverse onus of proof. The concern I have—and I would be very grateful if the minister could give his views in relation to this—is that, in the whole context of this particular subclause, there is no cause and effect. It would make it much easier for a claim without any particular substance to be brought against an employer, a small business person—a person who does not have the resources of a BHP Billiton or a Commonwealth Bank. That employer would have to be dragged through the courts and would then have to rely on section 7B of the act and also on section 7C, where there is a reverse onus of proof. So the onus is on the employer to show that what they did was reasonable—and there are considerable costs involved in that. That is my concern in relation to indirect discrimination. I do not support the opposition's other amendments, I want to make that clear, but I am concerned about unintended consequences in the context of the proposed section 7A(2) of this bill. By having the words 'with family responsibilities', there is no requirement for cause and effect, and that causes me real concern about whether there could be unintended consequences in relation to this bill.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Thank you, Senator Xenophon, for your question. If you read it through, it says that for the purposes of this act a person discriminates against another 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 a person with family responsibilities'. That is true. You have to put it in the context of the whole section, which does have both a reasonableness test together with the reversal of the onus of proof. In other words, if you read 7A(1), it says:

For the purposes of this act … if, by reason of—

and it goes through (a), (b) and (c) and then (2), because this section 7A is reflected in a range of pieces of state and territory legislation dealing with family responsibilities. But the broad issue around this section itself, which is an indirect discrimination provision which is also found in similar terms in other legislation, is about dealing with circumstances where there is indirect discrimination. If you removed 7A(1) and (2) completely—

Senator Brandis interjecting—

If you removed the provision you would then leave a hole in the ability of the legislation to deal with indirect discrimination. That is the effect of what you would do. I know Senator Brandis interjects. I listened to him in silence, notwithstanding what I would have regarded as some pretty spurious straw-man reasoning together with some pretty wild Chicken Little arguments. Nonetheless, I will not be drawn. The provisions have been drafted very carefully by competent draftspersons to ensure that we do capture the issues around indirect discrimination, so not only those ones which are itemised in 7A through to 'if, by reason of: (a), (b) and (c)' but also those in (2) for the purposes of this act. Ultimately, the argument around this issue that employers will not be able to get on with their daily work is, I think, falsely premised.

This same argument that 'the sky will fall down' was articulated way back in 1984 when the legislation dealing with discrim­ination first came in, and of course the sky did not fall in and employers managed competently to address these issues. The Australian Human Rights Commission has managed quite competently over that long period to deal with areas where both can be right, or both can be wrong, or one is wrong and one is right, as between the employer and the employee in these issues. Yes, there are through the course of events circumstances which are thrown up where employees might feel discriminated against, either indirectly or directly, and they may find themselves pursuing an issue within the Australian Human Rights Commission. But common sense, I have found over the last 20 years, has prevailed in these arguments. Of course there are employers who quite rightly do believe that the actions they take are nondiscriminatory, that they are bastions of good employers and their actions, they believe wholeheartedly, are nondiscrim­inatory either in truth or in effect. But on a clear and close examination, objectively by another, they do discriminate, maybe indirectly, maybe directly. That is why we do have provisions in legislation like this for the purposes of dealing with both direct discrimination and indirect discrimination and why (2) deals with the effect of disadvantaging persons with family respon­sibilities.

These are sensible amendments. We have spent a considerable amount of time ventilating them, but I will take a couple more minutes on this. I have now had an opportunity this morning to go back and reapprise myself of the Legal and Constitutional Affairs Legislation Committee report. The committee ultimately recom­mended that this bill be passed and it made some suggestions. I do recognise that the coalition took a different course. The Liberal senators recommended that the bill be amended, and we are now dealing in part with some of their recommendations. So there is a genuine disagreement that is again being ventilated here. That is not to take away either of the arguments, but on balance the government believes firmly that the provisions that it has put up and that the Senate committee by a majority recom­mended, should be passed. The government continues to believe that the provisions are reasonable and will operate reasonably in the workplace and between employers and employees, and will not have the disastrous effects of causing a business to cease or that people will only employ male boilermakers in the workplace. With all of those things I think we are really getting beyond what I would call rational debate in the Senate. I think the arguments, although well pre­sented, miss the point of the whole piece. This is about ensuring that we do capture indirect discrimination in this area, and the drafters have achieved that in 7A(1) and 7A(2). We as adults can disagree. On this basis, Senator Brandis clearly disagrees that we have captured it accurately and correctly. I do not share his view and I have listened intently to the arguments he has put forward. They have not persuaded me, although I think Senator Brandis would have expected that they were not going to persuade me in any event. When I look at the provisions themselves, for my own sake I still remain unconvinced that his arguments have any merit.

To put it another way, it seems to be that these provisions would operate in a commonsense way in any event. That is how legislation has operated in this area for a very long time and it continues to operate that way. I would encourage the opposition to understand that pointing to unbelievable circumstances is a device that we all use occasionally in this place. It does provide colour and movement to use extreme examples, but the practicality of it is that these are sensible amendments, they will work and they will operate to ensure that family responsibilities will be taken into account and that employers will not discriminate, either indirectly or directly, against someone who has family responsibilities. It is a matter that is currently provided for in ensuring that we do have balanced rights for families to assist them to balance their work and family respon­sibilities. We do want to accommodate flexibility where it can be accommodated within the workforce. Employers should be able to flexibly meet those requirements.

Equally, we recognise the pressure on small businesses themselves, particularly small-business owners. The issues raised by Senator Barnett were apposite. We do have to ensure that small business can get on with the work that they do well and the bill does not require businesses to make unreasonable arrangements. In practical terms, it will not require employers to make themselves aware of all circumstances of their employees because an employee could hardly claim to have been refused flexible arrangements without first having discussed these with their employer.

I find from my interactions with small business that they regard their employees as part of the business, they talk to them daily, they discuss many of the issues we are talking about and they work around all these issues I have described. Small business generally knows their employees quite personally. Where you have one, two, three or four employees in the workplace, it would be unusual for employers not to know them personally or not to know their personal circumstances. But it may happen.

Many of the arguments that are being progressed today for some hour are misplaced. We do not support Senator Brandis's amendments. We will continue to press for the amendments which have been drafted. I have probably now provoked further discussion on this but, in answering your original question, we do not think it has the effect you have outlined. We think it will act reasonably.

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

I thank the minister for his response. I still have reservations about the potential operation of subclause (2), not subclause (1)—that is not an issue--which is largely a restatement of the existing section 7A of the act. My problem is with the third to last word in subclause (2), the word 'with', not 'because of', not 'due to' and not 'as a direct result of' family responsibilities. It is the word 'with' that I think extends it in a way that may not be reasonable, that will not enhance the operation of the act and that could well lead to the unintended consequence of litigation in the context of section 7B, which gives a reasonableness test. With section 7C there is a reverse onus of proof. I have reservations about this particular subclause. That is why I have difficulty in supporting it.

I make it clear that this is not about taking away the rights of those who have family responsibility. That is clearly in the legislation as it is now and it is restated in proposed subclause (1). I think there will be some very real issues here in litigation. I am not convinced that there will not be some adverse consequences for small businesses and I am concerned at the impact it may have in the way that small businesses regard the employment of those individuals with families. For Senator Ludwig—for whom I have enormous respect—to say that the sky did not fall in—no, it did not.

Anti-discrimination legislation is an essential feature of a civil society, but let us not have something that could well be contrary to the aims of that legislation, something that I think could lead to the legislation having consequences that were not intended and something that will cause damage all round, to those it is seeking to protect and to those that could be the subject of litigation. Question put:

That the amendments (Senator Brandis's) be agreed to.

The committee divided. [13.47]

(The Chairman—Senator Ferguson)

Question agreed to.

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

In relation to the division I am sorry to say that there was a coalition senator who was not paired. There seems to have been some confusion on his part about whether he was paired or not. He did appear in the chamber and then absented himself. The opposition is embarrassed by this, but we are attempting to locate that senator at the moment.

Government Senators:

Government senators interjecting—

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Order!

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Mr Chairman, on a point of order, I indicate on behalf of the government that, if there has been something amiss with the vote, we would entertain a resolution to recommit the vote after the taking note debate this afternoon which would allow people to work out clearly what has happened. If some embarrassed senator has to come in and explain, someone has had to do it before. I think it is best that we move on with an understanding that whatever needs to be dealt with will be dealt with after the taking note. The government will obviously cooperate if there has been an error in terms of representing the will of the Senate.

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

I thank the Leader of the Government in the Senate for his courtesy in this regard. That then is the way we will proceed. In view of the time there are two other amendments which are on the sheet circulated in my name—

The TEMPORARY CHAIRMAN (13:55): I think perhaps you should postpone consideration of amendments (2), (3) and (5) before moving on to the next one.

I accept your guidance because the opposition wants to consider its position in relation to amendments (4) and (6). Amendments (2), (3) and (5) are, and I think it is uncontroversial, consequential upon amend­ment No. (1) which was the subject of the division which has just been held. I seek leave to speak to amendments (2), (3) and (5) together.

Leave granted.

I am mindful of the time. Let me just say this: amendment (2) is essentially a renumbering amendment which would reflect the shape of the act in the event that the principal opposition amendment—that is, the deletion of item 18—were to have been carried. Amendment (3) is also essentially a renumbering amendment which again would reflect the shape of the act in the event that if opposition amendment (1) were to be carried out, item 18 would be deleted from the bill.

Once again, opposition amendment (5) which would omit from item 65, which itself is a series of amendments to section 41A(2) of the act, would take the form of taking from section 41A(2) those words which would only have been introduced if amendment (1) which is, if I may describe it as such, the 'head' amendment were to be carried. What I anticipate will happen is that the Senate, as indicated by the Leader of the Government after taking note, will recommit the vote. The coalition senator concerned will, I anticipate in conformity with the courtesies and protocols of this place, make a brief explanation for his unintended absence. I am sure there was a confusion of some kind and, in the event that the opposition's principal amendment were to succeed on an equality of votes, then I would not anticipate there to be any controversy about opposition amendments (2), (3) and (5) which I imagine would be allowed to go through on the voices. That is where it stands at the moment and I do not know that I can take the matter any further. I am mindful of the time and I am mindful in particular that question—

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

You are obviously mindful of the time, you have said the same thing for the last five minutes.

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

Senator Carr, with respect, if you had been listening—

Senator Carr interjecting—

Senator Carr, I am so often in your debt! What I in fact was doing in a slightly more painstaking fashion than is usual was explaining the textual changes to the act which would have been brought about by each of the three consequential amendments, which, as I pointed out—

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

So why don't we say it all again?

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

I am not going to say it all again, Senator Carr. I am sure that your intellectual command would have been sufficient to understand it the first time had you been listening. So by your interjection I am afraid that you reveal that you were not listening, which causes me to be very disappointed in you, Senator Carr. Never­theless that is the course we propose to take and once again I thank the Leader of the Government in the Senate for his customary courtesy.

Progress reported.