Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

The question is that the bill stand as printed. Senator Scarr.

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

I think Senator Hanson-Young was before me.

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

I was going to ask that perhaps we start moving on some of these amendments and ask that the question be put, but if you want to keep your contribution short, Senator Scarr, then I will, in the spirit of generosity, allow you to ask one more question.

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

I appreciate Senator Hanson-Young's expression of generosity. However, I have a number of questions.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

Senator Hanson-Young, Senator Scarr has the call.

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

No, he didn't actually—

The TEMPORARY CHAIR: He does have the call.

The TEMPORARY CHAIR: Senator Hanson-Young, Senator Scarr has the call.

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

Minister Farrell, before we hit the hard marker I was asking questions in relation to the position of the Australian Human Rights Commission on the cost regime that's proposed in this bill. The minister who was then at the table, Senator Watt, said the Australian Human Rights Commission had proposed cost provisions which were similar to section 570 under the industrial relations legislation. My understanding was that the Australian Human Rights Commission had actually proposed a different cost regime, and I just wanted to give you an opportunity to perhaps correct that record.

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Thank you, Senator Scarr. Of course, I wouldn't dare correct anything that Minister Watt has said in this chamber. In order to make clear the position on the question that I think you're asking: the government considered a range of cost models and determined that this modified equal access model, as adopted in the bill, would address the significant barrier presented by costs in a way that balances the interests of both parties.

The government's reforms will be a significant improvement in the status quo. Currently, the default position is that the costs follow the event. This means that an unsuccessful party would be ordered to pay the costs of a successful party. For people who have experienced harassment and discrimination, this is a significant deterrent to commencing proceedings. This uncertainty is heightened by the lack of legal precedence in discrimination law matters. In contrast, the soft cost neutrality approach, recommended by the Australian Human Rights Commission, would require each party to bear their own costs in unlawful discrimination court proceedings. This means that, even where an applicant is successful, they may still be out of pocket due to the costs exceeding the damages. This model provides less certainty to applicants about how costs would be awarded. Stakeholders have raised concerns that this model can impact the applicant's ability to secure a no-win no-fee legal representation.

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

Minister, I'll be more specific—and I realise you weren't here when Minister Watt provided his answer to my previous question. Senator Watt said the Australian Human Rights Commission had proposed a cost model on the basis of section 570 of the Fair Work Act. But isn't it the case the Australian Human Rights Commission actually proposed a cost model which was different from section 570 of the Fair Work Act? And let's bear in mind this is the Australian Human Rights Commission, who deals with these matters on a day-to-day basis. The Australian Human Rights Commission, in its submission to the commission inquiry, actually proposed a cost model different to that proposed in this act—namely, that courts should take into account a range of specified and numerated matters and the interests of justice and any other matters which the court considers relevant. Isn't it the case that this act is a departure from the cost model proposed by the Australian Human Rights Commission, who is at the coalface of dealing with discrimination matters and sexual harassment matters in this country?

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

My understanding, Senator Scarr—and you're right: I wasn't present when the previous comments were made—is that Minister Watt has accurately explained the current position of the Human Rights Commission.

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

No.

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Well, that's my understanding. And their current position is the position that we're adopting. Just to be clear about that, the answer I just gave you is, I think, the correct answer. The bill does differ in the way I've expressed it, but it's based on the recommendations from the Australian Human Rights Commission's Free and equalreport.

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

Sorry, Minister, I'm going to have to belabour this point because this is an important point. This is the peak human rights body in this country, which deals with discrimination matters on a day-to-day basis. Isn't it the case that the Australian Human Rights Commission proposed a cost model which was materially different from the cost model proposed in this bill, insofar as it was a cost model under which a whole list of enumerated matters were to be considered by the court and the court was also to consider the interests of justice and any other relevant matters, and then the court would have the discretion in relation to decisions with respect to the award of costs? The Australian Human Rights Commission, on that basis, raised some serious concerns in relation to the sections of this bill, the application of this bill, the cost model, which is an Australia-first, as it would be applied in this bill, particularly in the context of small businesses, charitable organisations and other organisations which don't have the resources that the big end of town have, that the ASX 100 have. They don't have teams of lawyers and general counsel. The Australian Human Rights Commission raised serious concerns in relation to this cost model and proposed a cost model which is different from that contained in the bill. If that is the case, why is the government proposing a cost model in relation to discrimination matters which is different from that proposed by the Australian Human Rights Commission, which deals with these matters on a day-to-day basis? Doesn't that raise any red flags? Doesn't that raise any concerns?

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Not for me, Senator Scarr. I think you're nitpicking a little bit here. We believe that what we are doing here is consistent with the sentiments expressed by the Australian Human Rights Commission.

I can remember, when I first started working as a lawyer for the Shop Assistants Union in 1976, getting into a situation where, if you had a dispute before the industrial relations tribunal, then it was always accepted in those circumstances that each side met their own costs.

Now, you refer to the situation of small businesses. That's not an unfamiliar position for many of the people who will be taking these applications on the employee side. They often don't have access to the legal representation that you describe as coming from 'the big end of town'. I think this is a fair and just application of the costs issue in these sorts of situations.

In my view, having come to this issue relatively recently—like in the last 20 minutes—this is an absolutely fair application of rules that would generally apply in industrial relations situations. Now, I don't know whether South Australia was ahead of its time back then in the way—

Ross Cadell (NSW, National Party) Share this | Link to this | Hansard source

They weren't!

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Always! Did you say 'always', Senator Cadell? I'm not sure if South Australia was ahead of its time back then, but I think that's a fairer way to approach these issues. I think we are, by and large, compliant with what the Human Rights Commission is suggesting. I think this piece of legislation is a fair way of treating these issues on both sides.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I move amendment (1) on sheet 2566:

(1) Page 2 (after line 12), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause an independent review to be undertaken of the operation of the amendments made by this Act.

(2) The review must commence no later than 2 years after the day on which this Act receives the Royal Assent.

(3) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.

(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

Minister, throughout the committee inquiry process concerns were raised by the Australian Human Rights Commission. Senator Scarr has canvassed many of them in this debate. But it's not just them. There are many others with unintended consequences that could flow from this bill. Many of those were highlighted very eloquently by Senator Scarr in his dissenting report.

The bill proposes a significant change. I note that it is welcomed by many, but it is not in line with what Kate Jenkins and the Australian Human Rights Commission recommended around a hard-cost neutrality model. The impacts of these changes deserve proper consideration. Will the government support an independent review of the operation of amendments in this bill?

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

I thank Senator Pocock for his question and for the advance notice that he was able to give us of that question. We very much appreciate your engagement with this bill, but, unfortunately, the government does not agree that a statutory review of this bill is necessary and it will not be supporting the amendment.

The nature of our court system is that the new cost regime, once it is in place, will be under constant scrutiny and review. If there are unintended consequences or problems, that will become clear through jurisprudence. The Attorney-General's Department will also be monitoring the operation of the new costs regime as a matter of course; however, the Attorney-General is willing to give an undertaking that a review of the operation of the new costs regime will be undertaken three years after its commencement, with a focus on any unintended consequences. The Attorney-General will write to you, Senator Pocock, to affirm this undertaking.

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

Can I just say this should be a no-brainer? It should be an absolute no-brainer to embed in this legislation a review mechanism, as proposed by Senator Pocock in good faith, so that, if these concerns come to fruition or don't come to fruition, there's an opportunity to have an independent review of the operation of this cost regime to see what the evidence is after this cost regime has been in place for a period of time. The concept of an independent review of the operation of legislation which has been the subject of submissions with numerous stakeholders—in this case, from the Australian Human Rights Commission to small business organisations et cetera—that have raised concerns, should be a no-brainer. It's not controversial. It's one thing for the minister to give an undertaking, but it should actually be in the bill. It shouldn't be dependent upon the actual minister. It should be in the bill, as we include reviews of all sorts of legislation in this place when stakeholders with great credibility have raised concerns about unintended consequences.

I see absolutely no reason why the government couldn't in good faith agree to the introduction of an independent review mechanism in this bill—a review, as Senator Pocock is proposing, to commence no later than two years after the date on which this bill receives royal assent. The operation of this cost regime would have two years, and the persons who conducted the review must give the minister a written report of the review within six months of the commencement of the review. Then that independent review needs to be tabled in this place so all of the senators from all the different parties have an opportunity to review and consider that independent review and the evidence generated by that review process, make comments and consider whether or not this was the right path or there needs to be tweaks. This is a very reasonable amendment, and the coalition certainly supports it.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that the amendment moved by Senator David Pocock on sheet 2566 be agreed to.

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

I'd ask that the question be put.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

The question is that the question be put.

A division having been called and the bells being rung—

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I'm just seeking clarification: what is this division on?

The TEMPORARY CHAIR: Whether the question should be put.

Not on amendments?

The TEMPORARY CHAIR: No, just on—

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

If we need to cancel the division that's fine, but there was no-one moving their amendments.

The TEMPORARY CHAIR: For the ease of the chamber, we'll cancel the division.

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

Well, with that delightful guidance, I move opposition amendment on sheet 2384 in relation to costs:

(1) Schedule 1, item 3, page 3 (line 10) to page 4 (line 20), omit section 46PSA, substitute:

46PSA Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court in relation to a matter arising under section 46PO may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2).

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the Commission;

(ii) the matter arose from the same facts as the proceedings.

I will make a few comments in relation to it. This amendment would essentially implement what was recommended by Commissioner Jenkins in her report. We all have a great regard for former commissioner Jenkins in relation to this jurisdiction. Commissioner Jenkins actually proposed that the costs provision that should apply under this legislation should be similar to section 570 of the Fair Work Act. That's what Commissioner Jenkins proposed in relation to sexual harassment. Former commissioner Jenkins made a profound change in relation to the issue of sexual harassment and how it is viewed in the wider Australian community and how it is viewed in relation to this parliament, and that was Commissioner Jenkins's recommendation: that Section 570 of the Fair Work Act should apply with respect to costs in relation to this issue. And that is what this amendment proposes. It proposes that this bill incorporate the costs provisions that were proposed by former commissioner Kate Jenkins.

As I said, the Australian Human Rights Commission proposed something where the court could consider a whole range of issues in the interests of justice. The bill doesn't reflect that either. But we in the coalition have a great respect for former commissioner Jenkins. We believe that her recommendation on costs provisions should be applied and the provisions that are contained in section 570 of the Fair Work Act should be reflected in this legislation.

That would mean that, as a general proposition, each side would pay their own costs, as happens in relation to industrial relations matters. However, there would be a provision allowing the court to depart from that general approach, so that the court could consider the particular circumstances of the case and then decide that, in the particular circumstances of the case, one side or the other should actually bear costs. We think that is a fair and equal-sided approach to this issue.

We get great comfort from the fact that the former Sex Discrimination Commissioner, someone as eminent as former commissioner Kate Jenkins, proposed this approach. We think that it's the right approach. We are terribly concerned, and the Law Council of Australia has raised concerns, the Australian Human Rights Commission has raised concerns—a whole heap of stakeholders have raised concerns—that what the government is proposing at the moment is too one-sided. For example, it means someone could bring a discrimination claim against a small business or sole trader, and, simply because that sole trader or small business couldn't settle or resolve that matter—and we'd all like to see these matters resolved as quickly as possible—they could be taken to court. Say that small business were to win in court. On the basis of the proposition that the government is putting forward, that small business, unless it went through some impossible hurdles, could not get its costs from the applicant, even though it had succeeded in court. Does that sound fair? Aren't we all meant to be treated equally before the law? What's proposed in this bill would be absolutely the first time this sort of principle has been introduced in any such legislation across the whole of Australia. No other legislation and no other jurisdiction has a cost system like this.

I note Senator Waters's interjection that I'm wrong in that regard. Well, if I'm wrong, the Law Council of Australia is wrong.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

No, it was the whistleblower laws. You should know that.

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

 With due respect, Senator Waters—and I have a great respect for your interest in this matter—I do not believe that whistleblower provisions and whistleblower laws are an appropriate analog in this context.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

You said there was no example, and I'm giving you an example.

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

Well, it's not an appropriate example. It's an incorrect example. Whistleblower laws are totally different from this jurisdiction, and I say that as someone who used to be responsible for whistleblower policy in an ASX listed company. They are totally different, and one of the differences is that those whistleblower laws apply to large corporates. That's one of the issues we have. There's a huge difference between Westpac Banking Corporation on one hand and a small cafe on the other, and it's totally unreasonable to impose this cost philosophy on a small business just as you would apply it to Westpac Banking Corporation, ANZ, BHP or Rio Tinto. It's just absurd.

I say to the government: when you're considering this amendment, consider the red flags raised by the Australian Human Rights Commission, a fiercely independent statutory body that is at the forefront of prosecuting the case for human rights across this country; think about the concerns and red flags raised by the Law Council of Australia, whose members deal with these cases on a day-to-day basis; and accept the advice of the extraordinarily eminent Australian Kate Jenkins, the former Sex Discrimination Commissioner, who proposed and recommended the model that is contained in this amendment. With that, I'm happy to support the amendment.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government will not be supporting this amendment.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the Senate is that the amendment standing in the name of the opposition on sheet 2384 be agreed to.

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

I would actually like to ask some further questions before putting the next amendment, if I could. In particular, I'd like to ask the minister some questions in relation to an issue around accrued jurisdiction. Just to give a heads up to the advisers who are at the table, this was in relation to an issue which was raised during the committee stage. The new cost regime starts with a subsection that reads as follows—to provide some context in particular to the advisers, because I know the minister didn't have the benefit of participating in the committee process. This is what it says:

This section applies to proceedings (including an appeal) in a court that relate to an application made by a person—

I want to emphasise that phrase—'that relate to an application made by a person'—

(the applicant) under section 46PO in respect of one or more respondents to a terminated complaint.

For those listening—this is a bit technical, unfortunately, but it needs to be asked—section 46PO is just the gateway into the courts from the Human Rights Commission. Once you've made your complaint in the commission, if you want to litigate in the Federal Court, an application under section 46PO is how you actually do it. My question is this, again, for the benefit of the advisers assisting the minister: what does that phrase, 'proceedings that relate to, in section 46PO', mean?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Scarr, for the question. The cost provision in this bill would apply to all unlawful discrimination matters that proceed to court. This means that the bill applies to applications made to the court after an unlawful discrimination complaint has been terminated by the Australian Human Rights Commission. These amendments mean that cost provisions in the Federal Court act would be subject to the new section 46PSA, which would be inserted by the bill. The government notes that there are other existing provisions in the Federal Court act regarding costs which will continue to operate alongside the bill. For example, the court will retain its discretion to apportion costs as it sees fit and order that costs awarded against a party are to be assessed on an indemnity basis or otherwise. The Federal Court act provides that, except as provided by another act, the award of costs is in the discretion of the court or judge—subsection 43(2). Where proceedings raise issues that extend beyond unlawful discrimination matters, it will be a matter for the court to determine costs having regard to the Federal Court act and the particular circumstances of the case.

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

That answer concerns me because it doesn't engage properly with the question that I asked. I'll tease it out for you more. Again, for the benefit of those assisting the minister, it's this phrase that we're asking questions about, which has been raised by organisations that made submissions to the inquiry. With respect to costs providing a regime under which a successful respondent can only claim their costs in extraordinarily limited circumstances, even if they've been successful, this regime applies to proceedings including an appeal in a court that relate to an application made by a person.

Quite typically, in these sorts of cases, there are multiple claims that are made. So, if someone brings a discrimination claim, they'll also potentially bring a breach-of-contract claim and they'll also bring a negligence claim. Their legal advisers will typically give them advice to assert all their rights as they can under different areas of the law. As I'm reading this section, it would mean that this new cost regime—and I'll repeat my view, which I note's contested—would be unique in Australian law, certainly with respect to discrimination law. This new cost regime wouldn't just be limited to discrimination claims; it would go to all the other claims that are brought at the same time, which includes a contractual claim, a claim for negligence—it could apply to anything else. So my question is: in that situation, where an applicant brings a claim that has a discrimination element and also, in the same statement of claim, alleges breach of contract and negligence, will this new cost regime apply to all of those claims or just to the discrimination element?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I have nothing to add to my previous answer.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 2565:

(1) Schedule 1, item 3, page 4 (after line 15), at the end of subsection 46PSA(6), add:

; or (d) the other party is a small business.

(2) Schedule 1, item 3, page 4 (after line 15), after subsection 46PSA(6), insert:

(6A) For the purposes of this section, small business means a business with fewer than 20 full-time equivalent employees.

Minister, concerns have been raised in relation to respondents where there is not a symmetry of resources or power. I acknowledge Senator Scarr has been asking some questions about this. Examples put forward include university academics and small businesses. I heard your statement to Senator Lambie that there was not evidence to the committee inquiry that there will be increases to the cost of insurance. Senator Scarr pointed to evidence contradicting this. So I am asking: what guarantees can the government provide that there will not be a really problematic impact on very small businesses and employers who are individuals?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Apologies, I think it was someone who was here previously who was providing answers to some of those questions. This bill provides safeguards against unmeritorious claims. If an applicant institutes a proceeding vexatiously or without reasonable cause, or if the applicant's unreasonable act or omission causes the other party to incur the costs, the court can order the applicant pay the respondent's costs. This means that the risk of an adverse order will continue to deter unmeritorious claims as applicants may be ordered to bear their own and the respondent's costs in these cases. These safeguards will exist alongside the protections against unmeritorious complaints under the Australian Human Rights Commission Act and the federal unlawful discrimination law framework.

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

Again, I rise to support David Pocock's amendment. I think this is a very welcome amendment. I congratulate Senator Pocock on moving this amendment which addresses some of the concerns that were raised by numerous stakeholders to the inquiry we had in relation to this bill. It is difficult to fathom why the government will not listen to the legitimate concerns that were raised by the fiercely independent Australian Human Rights Commission in its submission. The Australian Human Rights Commission is desperately concerned that the cost regime in this bill doesn't draw any distinction between large corporates, the big four banks, Coles, Woolies on the one hand and a small cafe with maybe two or three employees on the other. There is absolutely no distinction drawn between the two.

What Senator Pocock's amendment is seeking to try to do is to say that an organisation that has the benefit of an in-house legal team, has the benefit of a corporate central office can pay legal fees et cetera. There should be, on top of these issues, no excuses for the big end of town, and Senator Pocock is saying it is reasonable to treat a small business, with respect to these cost issues, differently. To me that is incredibly sensible.

I want to give you a live example because this is the regime that you're proposing. If a claim is brought against a cafe owner with respect to any discrimination, not just sexual harassment as we have established, that cafe owner maybe tried to settle the claim beforehand, did their best to try and settle it. Maybe they didn't try and settle it because they didn't think they were at fault. They have gone to court, defended the claim, spent tens of thousands of dollars, maybe over $100,000—court is not cheap—and been successful. But the way this bill operates, especially when you read the explanatory memorandum, because they are the employer, even though they are a small business—no distinctions made between an employer with 10,000 employees or four or one—and even though they have been successful on every count, they can't claim their costs from the applicant who was unsuccessful on every count because there is a significant power differential—that is, they are an employer and the applicant was an employee. That is the way this act would work. Is that fair? Is the minister seriously saying that's fair? This would introduce this concept for the first time in the Australian legal system—

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

No, it's not the first time.

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

And I don't accept the parallel with respect to whistleblowers. I think that's an absurd parallel, to be frank, Senator Waters. I do respect your interest in this matter, but whistleblowers are a totally different situation. You don't have whistleblowers of the type we're talking about here in a small business. It's a totally different situation that we're talking about here, where a small business has had to defend itself, it's had its day in court and won and then it can't get its costs. What Senator Pocock is proposing is that there be a distinction, which in the coalition's view would improve this bill. I still have objections to the cost regime contained in this bill, as the coalition does. But his amendments would make a serious improvement to this bill, because what the government's doing is simply imposing an additional burden on small business.

I spoke in this place in relation to the industrial relations reform that was moved by the government in relation to the definition of casual employee. I made the point that the definition of casual employee now runs to 2½ pages of a piece of legislation. A small business is expected to read 2½ pages to make a determination as to whether or not someone is a casual employee or not a casual employee. They've got to ask themselves 25 questions. What small businesses have the chance to do that under the cost-of-living crisis that they're operating in at the moment? No small business. This is just another whack at small business, and I can't fathom why the government isn't prepared to countenance the sensible amendments from Senator Pocock.

Senator Pocock has read the proceedings of the committee, and he's absolutely correct: everyone, from the Australian Human Rights Commission through to the Law Council of Australia, business bodies and other stakeholders, has raised this concern, that you're imposing this obligation upon small business. It's not right. It's not fair. It's not reasonable. That's especially the case when you consider these amendments in conjunction with the fact that the Australian Human Rights Commission is seriously concerned that the provisions in this act mean that claims in the Australian Human Rights Commission are less likely to settle. That is one of the concerns that the Australian Human Rights Commission has raised—that claims in the Australian Human Rights Commission are less likely to settle. Why? It's because one of the things which usually brings parties to the table to settle and engage in discussions is, 'I don't want to risk going to court because I might have costs awarded against me.'

The Australian Human Rights Commission is saying that the regulatory pendulum is swinging far too far the other way. That means that matters which should be conciliated and should be resolved in the Australian Human Rights Commission—for goodness sake, shouldn't we be trying to keep as many things out of the courts as possible and getting them resolved as quickly as possible? Isn't that in the interests of the Australian people? Yet the Australian Human Rights Commission is saying that one of the unintended consequences they're concerned about is that matters are less likely to be conciliated in the Australian Human Rights Commission.

The other matter the Australian Human Rights Commission raised was in relation to the fact that a court can't take into account or consider, under your cost regime—not the cost regime proposed by former commissioner Kate Jenkins, not the cost regime proposed by the Australian Human Rights Commission, but the cost regime that the Labor government is proposing, with the support of the Greens—whether or not a complainant engaged in the Australian Human Rights Commission process. Don't you think there should be something in this bill that actually says that, if you're going to go to court and putting everyone to the cost and expense of going to court, at the very least the court should be able to consider whether or not you as the complainant actually engaged in good faith in the Australian Human Rights Commission process to try and resolve it? But you don't even include that in the bill. So you're adding a further burden on small business—our poor old cafe owner, family business, fish and chip shop or whatever—which is holding on by its fingernails—

A further burden is being placed on them through a regime that the Australian Human Rights Commission does not support, Senator Waters—through you, Chair. I would have thought, in these areas, we should be listening very carefully to the concerns which have been raised by the Australian Human Rights Commission and the Law Council of Australia. It certainly raised some red flags in my mind, and I really do commend Senator Pocock for taking the time to go through the committee report, to look at the evidence, to consider the application of that evidence and then to come up with this amendment, which, from the coalition's perspective, is a welcome amendment. It does improve—

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Scarr.

Progress reported.

It being 1.30, we will now move to two-minute statements.