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Wednesday, 11 May 2011
Page: 2337

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (18:21): Parliamentary Secretary Feeney, the conduct you have described would be caught by a prohibition against direct discrimination; and, as I have been at pains to say, the opposition supports the prohibition of discrimination against people on the grounds of family responsibilities—as long as that is direct or intended. But the problem with your argument is that that is not what the proposed section 7A does. If I may take you to clause 2 of the proposed new section, this is how it defines discrimination:

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.

That is what it says.

Let us take a relatively small business. You may have the business owner or the business operator with a perfect record when it comes to treating people of both genders equally and with equal respect. He or she may be a business operator who goes out of their way to be careful of and considerate of the needs of his or her employees who have family responsibilities. This person might be a paragon of antidiscrimination practice. But in the business they might employ single people without family responsibilities and married people or people with children who do have family responsibilities. Because there is not an element of intention in your proposed provision—because it does not include what lawyers call a 'purpose test' but only an 'effects test'—this business operator, if he or she introduces a practice that has a differential effect on the single person or the person with family responsibilities or if it is even a practice which may not have any differential effect but is likely to have a differential effect, falls foul of the prohibition.

I think you have children, Parliamentary Secretary. I have children. Most of our colleagues do. Anyone who has any familiarity with family circumstances knows that the parents of children have particular obligations as a result of that fact alone that single people do not have; and therefore, a change in workplace arrangements is bound to affect employees with parental res­ponsibilities in a different way from the way it affects employees without parental responsibilities. Because of the legislative overreach in the proposed section 7A, the business operator whom I have postulated—this paragon of good antidiscrimination practice whose motives are as pure as can be and who would never intentionally discriminate against one of his or her employees because of family circum­stances—could still fall foul of it simply because of the fact of life that people with children live different lives and have different pressures and, therefore, have different workplace pressures from single people. That, if I may say so respectfully, Parliamentary Secretary, is unreasonable, and it does impose an unreasonable compliance burden on, in particular, all small business operators.

That is why, as well, as I said in the second reading debate, the opposition is also concerned that a provision like this could be used for a collateral purpose: to achieve an industrial relations outcome in prosecution of an industrial relations agenda, not for the bona fide purpose of preventing discriminatory practices in the workplace itself. We all know how legislative pro­hibitions, burdens or superadded obligations can be used for collateral purposes, and that also ought always to be avoided. Unless, Parliamentary Secretary, you can be reassured that no decision an employer ever makes will have a different effect on employees who have children and on employees who do not have the family responsibility of children, then such an employer will always potentially be in breach of this law.

How can it possibly be the case that it is good legislation to create a prohibition so wide that any employer could always be in breach of it merely because that employer employs parents and non-parents among the workforce? What it will have—and beware the law of unintended consequences—is a greater reluctance, particularly for small business operators, to employ people with family responsibilities in the first place but to mask their recruitment practices in such a way that it would never be apparent that that was their motive. The result of section 7A will be to entrench much deeper potential discrimination against people with family responsibilities because of the incompetence of the legislative overreach inherent in this section.