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

Much of the preamble in relation to the introduction of this bill related to the context of sexual harassment, and obviously there was a concern in many quarters that there were impediments in relation to people bringing legitimate sexual harassment claims. But isn't it the case, Minister, that this bill doesn't just apply to claims relating to sexual harassment in the workplace? In fact, it does apply to and is intended to apply to claims under any federal discrimination law. Is that the case?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Yes, that's correct.

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

So, for the record, Minister, it covers every type of claim under the Sex Discrimination Act as well as litigation arising from complaints under the Racial Discrimination Act, the Age Discrimination Act and the Disability Discrimination Act. Is that correct? Does it cover any claims under any other piece of legislation? Have I left any out?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

It covers all discrimination acts—federal antidiscrimination laws. It's worth noting that a significant proportion of complaints made to the Australian Human Rights Commission are intersectional in nature. That means that they raise issues across a number of protected grounds or prohibitions under various pieces of federal antidiscrimination law.

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

Can I just pursue that point that you've made about intersectionality. If we have a look at the complaints that were received by the Australian Human Rights Commission in 2022-23, this is the classification by the Australian Human Rights Commission. The Australian Human Rights Commission identified 302 of those 2,562 complaints, approximately 12 per cent, as related to sexual harassment. Again, this is not my classification; this is the Australian Human Rights Commission's. In 2021-22, it was eight per cent. In fact, even if you take every different type of claim available under that legislation and add them together, less than a quarter, just 22 per cent, of all claims in 2022-23 were made under the Sex Discrimination Act. In 2021-22, it was 16 per cent. Could you confirm that approximately 80 per cent of claims, based on the Australian Human Rights Commission's own figures, aren't made under the Sex Discrimination Act at all, which covers more than sexual harassment, but are covered by this legislation. So, based on the last two years, approximately 80 per cent of the claims made by the Australian Human Rights Commission don't cover sexual harassment and don't cover claims under the Sex Discrimination Act and actually apply under other discrimination legislation.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I don't have those figures to hand, Senator Scarr. But it is the case, as I understand it, that the majority of antidiscrimination complaints made to the Human Rights Commission relate to disability discrimination. It is important, though, that the same cost protection model applies across all protected attributes and all areas of public life covered by federal antidiscrimination law. Complaints that raise a number of grounds or raise issues across different antidiscrimination acts proceed together in the Australian Human Rights Commission and in the federal courts. That supports the efficient resolution of complaints. From the government's perspective it would not be practical for these complaints to proceed separately or for different costs regimes to apply under federal discrimination law. This would increase the administrative burden on the Australian Human Rights Commission, which would need to deal with complaints separately. The Australian Human Rights Commission itself has recommended that cost reform be consistent across federal discrimination laws, and that's what the government is proposing with this bill.

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

I will be pursuing some of those issues. I note, Minister, that you didn't have the benefit of sitting on the inquiry that looked into this bill, so you don't have the benefit of knowing—or maybe you do know—that the Australian Human Rights Commission did not recommend this cost model. The Australian Human Rights Commission recommended a cost model where courts could actually use their discretion to take into account a range of factors and then come to a conclusion as to where costs should lie based on the interests of justice. So they did not agree to the cost model which is proposed in this legislation. It should be stated that Kate Jenkins, for whom we all have an immense amount of respect, when she put forward her proposal referred to section 570 of the industrial relations legislation rather than the cost model which is proposed under this legislation. I provide that by way of background in relation to further questions we'll be putting to probe this issue.

In relation to the scope of the act, there's obviously a process underway whereby the government has been looking at introducing a religious discrimination act. Just for the record, if a religious discrimination act were passed and became law, would claims brought under the religious discrimination act also fall within this proposed cost regime?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I'm not going to engage in hypotheticals.

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

I thought you might say that, but given the government is, in fact, engaging in considerable discussion of processes with respect to a religious discrimination act I would have thought that was something which you could provide an answer to, even if you want to take the point as a hypothetical at this point in time. But I'll move on.

Let's talk about who these complaints could be made against. Could you please confirm for the record that the bill applies to complaints which could be made against schools, complaints which could be made against universities and complaints which could be made against other education providers, including in relation to matters other than sexual harassment.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

My understanding is that it is correct that it would apply to each of the parties that Senator Scarr has mentioned. Of course, it's very clearly set out in the act the types of parties against whom any discrimination claim could be brought.

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

I want to get this on the record as part of the committee process. Could it also apply to complaints against sporting clubs, including in relation to matters other than sexual harassment?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Yes. We could go through a very long list, Senator Scarr, but you are aware that, under the legislation, discrimination claims can be brought against sporting bodies. So the answer is yes.

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

It's not so much with respect to whether or not I'm aware; the benefit of this committee process is for everyone listening to this debate. I have some further questions in that respect. Could it apply with respect to complaints against accommodation providers?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If a complaint is brought against an accommodation provider, then this would apply.

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

It could apply to complaints in relation to the sale of land, for example. Is that correct?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I don't know who you would see as the respondent in that matter. Are you talking about a real estate agent?

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

Potentially. It could be a real estate agent or the vendor.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

All I'll say is that this would apply to any group against whom a discrimination claim is brought. It might be efficient, Senator Scarr, if you give me a list, rather than us jumping up and down for every individual one.

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

I think one of the benefits of raising each one individually is that it provides people with an indication, an understanding, of the scope of this legislation. The scope of this legislation does not simply apply to sexual harassment claims made, for example, against large employers. It's a very wide cost application under which, potentially, a sporting club or an educational institution can have a claim other than a sexual harassment claim brought against them and successfully defend that claim after they're dragged through the legal process and there will be no discretion for them to actually get their costs of having to defend themselves covered. I don't think that that is necessarily well understood at this point in time. So it's incredibly important that these matters are raised. I want to ask you, Minister, about a small business, maybe with only a few employees, that sells goods and services. Are they covered by this legislation?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

What I'll say now applies to each of the groups that Senator Scarr's asked about already. The bill is very clear that the commission needs to take into account, in any cost decision, the relative power of the parties. The commission would be required to take into account whether a respondent—I can't remember the exact wording in the legislation—has the resources, is large enough, to be able to bear those costs. That is the attempt of the government to ensure that this is done in an equitable manner.

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

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

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

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

No, I don't agree with what Senator Scarr is saying. I know there have been certain participants in this debate who have been encouraging small businesses and other groups to be fearful of what this legislation may involve. That is a matter for those participants whether they want to engage in that kind of behaviour.

If the government had wanted costs to be ordered or had wanted to prevent costs being ordered against applicants, we would have said so. That is not what we have said here. We have set out a range of considerations for the court to take into account in making cost orders which do include whether the respondent has financial or other resources relevant to the applicant.

The bill recognises not all respondents in unlawful discrimination matters are large corporations or well-resourced individuals. In fact, many respondents may be small-business owners or the types of other groups that Senator Scarr has mentioned, because discrimination unfortunately from time to time is committed by sporting groups, small businesses, schools and that is why provisions exist for people to take discrimination actions. But this is why the bill adopts a cost model that would reduce the burden on successful respondents that are not well resourced and not at a power advantage over the applicant while still removing barriers to justice for victims survivors.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I'm sorry, I did not have time to sit in on the committee so I do apologise if these questions have been asked. I note that the premiums for small business have gone up 30 per cent this year. I cannot get through to COSBOA—72 hours, by the way, COSBOA—so if you are there to help small businesses, it would be good if you picked up your phone. Nor could the Insurance Council get back to me and tell me whether or not by making this it is going to put these premiums for small businesses up more?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Senator Lambie, there is no evidence being produced that I'm aware of that this legislation will increase small business insurance premiums.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I'm sorry, Minister, have you based that on some kind of modelling that I can't find? What are you basing that on? Is that something you are pulling out of there today? What are you basing that on? I'm just trying to work it out.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

What I said was that there is no evidence that I'm aware of that anyone has produced that premiums will increase for small businesses. It is not that I've produced evidence that it will not happen; what I'm saying is that I'm not aware of anyone producing evidence that it will. As I say, we have taken steps within the legislation to ensure that these provisions cannot be abused. The way this costs regime would work is that applicants can be ordered to pay the costs of a respondent if they're unsuccessful in their claim under these circumstances: first of all, if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; secondly, if the court is satisfied that the applicant's unreasonable act or omission caused the other party to incur the costs; or, thirdly—and all of these need to apply—the other party is a respondent who was successful, meaning that if the school or the small business or whoever had the claim brought against them won, if that group doesn't have a significant power advantage over the applicant and if that group doesn't have significant financial or other resources relative to the applicant. So, if we're talking about a very small business—a mum-and-dad type operation—the court will need to take into account whether they actually had significant financial or other resources relative to the applicant.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I wasn't asking about that. I'm simply asking whether anyone inquired or whether any insurance company has come in to say whether or not further insurance costs would be put on small business because of this move you're making. But, if you have evidence to the contrary that says in those words that insurance costs will not go up for small business because of this new bill that you are putting through, I would be very grateful to see that.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Again, Senator Lambie, I'm happy to be corrected if I'm wrong about this, but my understanding is that no insurers provided evidence to the committee inquiry that suggested they were going to be putting up premiums as a result of this. There have been people out there saying that these amendments will open the floodgates to unlawful discrimination matters or claims that don't have merit proceeding to court. As I say, the bill provides safeguards against claims that don't have merit. If an applicant institutes a proceeding vexatiously or without reasonable cause or if their unreasonable act or omission caused the other party to incur costs, then the court can order that the person who brought the claim pays the other person's cost. So there are protections in here to prevent that from occurring.

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

Minister, I do note, with respect, that you qualified your answer in terms of the evidence and that you haven't been part of the committee process. I want to read onto the record testimony that was provided to the committee with respect to this issue of insurance costs and the concerns of, for example, faith-based schools in relation to insurance costs. I'll read from a joint submission to the committee on this bill from Adventist Schools Australia, the Australian Association of Christian Schools and Christian Schools Australia. They stated:

Discussions with insurance providers—

so they've actually had discussions with their own insurance providers about this—

has also confirmed that the arrangements in the Bill are likely to result in increased premiums, possibly proactively, as a result of the potential for greater claim payments.

So the obvious concern is that, if insurance premiums go up, these costs will have to be passed through to consumers, and that means the families who are sending students to faith-based schools. In other words, parents will have to pay more to educate their children as a result of the costs regime under this act. Some of these schools have already had discussions with insurance providers, and they provided that testimony in good faith. Can you provide a guarantee? You say you don't have any evidence, so presumably you therefore can't provide a guarantee that schools fees will not increase as a result of this legislation because of an increase in insurance premiums.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I'm not going to be providing guarantees about what will or won't happen under this legislation. It's not unusual for the coalition to come into this chamber and make alarmist claims about what government legislation will provide. It is worth remembering that statistics from the Australian Human Rights Commission indicate that only four per cent of finalised discrimination complaints actually proceed to court. So, for everyone who is voting on this legislation, it's worth remembering that it's only four per cent of finalised discrimination complaints that actually proceed to court. And, as Senator Scarr is aware, it's not unusual for parties who oppose government legislation to make statements about what they say will happen as a result of government legislation. It wasn't that long ago that Senator Cash was telling us that the government's industrial relations laws would take us back to the Dark Ages, and that didn't happen either.

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

Minister, you refer to alarmist representations being made. Again, I appreciate you haven't been intimately involved in the committee process, but the concern has been raised by the Law Council of Australia with respect to the impact of this new cost regime on small businesses, on non-government organisations, on sporting clubs et cetera. The concern has actually been raised by the Human Rights Commission itself in relation to the impact of this legislation on small businesses, on non-government organisations, potentially on charities et cetera. It doesn't believe that there is sufficient flexibility in this legislation to protect the interests of those organisations that don't have the financial resources of Westpac Banking Corporation or any of the other top 100 companies in the Australian economy. So isn't it the case, Minister, that legitimate concerns of the nature that have been raised by myself in the course of this debate and also by Senator Lambie and foreshadowed through amendments proposed by Senator Pocock have, in fact, been raised by some key stakeholders in relation to this space, stakeholders who engage in these issues on a day-to-day basis at the coalface, including the Human Rights Commission, who do not support the cost regime in this bill, and including the Law Council of Australia, who do not support the cost regime in this bill because they are concerned. They are concerned it doesn't provide adequate discretion to the judges, and they're also concerned it will have an impact on small businesses and charities and other organisations that don't have the capacity of big large corporates, don't have a hundred lawyers in-house and have to defend these claims by themselves. Isn't that right, Minister, that legitimate concerns have been raised by the Law Council of Australia and the Australian Human Rights Commission itself in relation to the cost regime in this bill? Could you confirm that, please, Minister?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Again, it's not unusual, when government legislation is proposed, that some stakeholders say it's great and some say it's bad. That's kind of what happens. My understanding is that, just as there were some stakeholders who said they were not supportive of this legislation, groups like the Australian Discrimination Law Experts Group, women's legal services, the ACTU and others said they did support it. It's a democracy. Some people support the legislation. Some people don't. Senator Scarr, you'll choose who you believe.

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

I choose to believe the Australian Human Rights Commission, which is the fiercely independent body set up to protect the human rights of all Australians and which is at the coalface of dealing with discrimination issues. The Australian Human Rights Commission itself is saying that it doesn't support this cost regime because it thinks there are inadequate protections for small business, for non-government organisations, for charities and for individuals that don't have the same level of financial resources. Are you seriously suggesting that the Australian Human Rights Commission should be treated as any other stakeholder in this debate? Doesn't it raise a red flag for you, Minister, that the Australian Human Rights Commission itself is raising material concerns with respect to this cost regime, or do you think its views should be treated as just like any other stakeholder?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Ignoring the irony of a Liberal Party senator standing up for Human Rights Commission—I'll just put that to one side for a moment—the Human Rights Commission is entitled to their view. My understanding is they did propose a slightly different model to what we were putting forward. We took that into account. We took into account the views of people opposed to this. We took into account the people who are supportive of this. Following public consultations, we consider that this bill's modified equal access model best achieves the objectives of the Respect@Work report. This model prevents a court from ordering an applicant to pay the respondent's costs, except in certain circumstances, and this would address a barrier to justice for those pursuing unlawful discrimination matters, while recognising that not all respondents are large corporations or well resourced.

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

What was the difference between the models you referred to? You understood there was a difference between the model that was proposed by the Australian Human Rights Commission and the model contained in this bill. What was the difference?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

My understanding is that the Human Rights Commission supported the model based on section 570 of the Fair Work Act, which includes a hard cost neutrality model, which requires each party to bear their own costs.

Progress reported.