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Wednesday, 11 May 2011
Page: 2334


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (18:08): by leave—I move opposition amendments (2), (3) and (5) on sheet 7046 together:

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

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

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

We also oppose schedule 1 in the following terms:

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

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

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

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

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

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

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

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

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

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