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Monday, 21 March 2011
Page: 1253


Senator BARNETT (1:39 PM) —I stand today to speak to the Sex and Age Discrimination Legislation Amendment Bill 2010. As the Deputy Chair of the Senate Legal and Constitutional Affairs Legislation Committee, I had the privilege of reviewing this bill. It was referred to our committee on 13 September last year and we were due to report on 8 February 2011. That was extended to 22 March 2011, I think for good reasons. As has been noted, the aims and objectives set out in the Attorney-General’s second reading speech are certainly supported in principle—to strengthen the protections against sex discrimination and sexual harassment, for both women and men, and to introduce a new dedicated position of Age Discrimination Commissioner. Of course, this is something that we have supported for some time on the coalition side. I will be speaking more about that shortly, including about the costs and the impact on the Commonwealth.

The Senate committee had to review the report that was undertaken by the committee in 2008—I think it was 26 June 2008. We had been referred an inquiry into the effectiveness of the Sex Discrimination Act in eliminating discrimination and promoting gender equality at that time. We gave due consideration—very thoughtful consideration—to that bill. I remember that at hearings in Canberra and in Melbourne we had a range of witnesses, including from the business community, the education sector, the church community, civil rights organisations and across the board. It was a very comprehensive inquiry. You might remember it well, Madam Acting Deputy President Fisher. We sat next to each other at the Melbourne hearings and you made some very pertinent observations which I well remember and no doubt others will as well.

This report and this bill are on the back of the bill that was passed subsequent to that inquiry, but not without a dissenting report from the coalition. Yes, we did support some aspects of that bill, but we opposed vehemently some other aspects of it. I want to say on the record that the Liberal senators, in our report, took a consistent approach. Firstly, we supported the provisions of the bill which would make technical amendments to the Sex Discrimination Act to implement some recommendations of that Senate report. I specifically refer to three of those recommendations. The first was to provide equal coverage to both men and women. The second was to establish breastfeeding as a separate ground of discrimination. The third was to protect students from sexual harassment, regardless of their age and whether they are harassed by someone from their own or another educational institution. In that regard I refer to the excellent hearing that the Joint Standing Committee on Cyber-Safety held this morning in the parliament—where we had Facebook, ninemsn, Microsoft and Yahoo!7 as witnesses, together with Dr Clarke, who was appearing in a personal capacity, although he has been chair of the Australian Privacy Foundation—which highlighted the importance of protecting the interests of children and ensuring safety and security while online.

The dissenting Liberal senators noted in their report that the bill would also implement other recommendations—recommendations 13 and 18—to expand the scope of the Sex Discrimination Act, to broaden the definition of sexual harassment; the bill would expand the powers of the Australian Human Rights Commission; and it would provide an exemption to preserve the operation of state and territory laws regarding official records of a person’s sex. I will come to that in a moment.

The Liberal senators made it very clear that we do not support those provisions of the bill which would either expand the scope of the Sex Discrimination Act or broaden the definition of sexual harassment unduly. We did not see adequate evidence presented at the inquiry of any systemic or widespread discrimination on the grounds of family responsibilities, or circumstances of particular sexual harassment, which are not currently adequately addressed by existing legislation. When I talk about ‘existing legislation’, I mean federal, state or territory legislation, because we cannot just look at this in a prism, in and of itself, by itself; we must see it as a whole. That is why I made those observations.

The coalition senators on the committee have been consistent on this. We do not always get our own way, but these committee inquiries are very valid, they make a lot of sense, and we are very pleased to be part of them. In many cases in our committee we come up with unanimous recommendations, and they have been adopted by this government, for which we are thankful. But we did present a dissenting report in 2008. It is on the public record. It is available on the Senate website. We noted:

There is little to no legislative gap in coverage with respect to sex discrimination and sexual harassment.

In fact:

… there are overlapping … obligations, under federal, state and territory anti-discrimination legislation …

That is why we need to look at this very carefully, make sure that we get our facts right and prepare and draft legislation that will actually work. It has to be consistent and not necessarily mirror states and territories but ensure that there is not a duplication, an overburdening, of regulation for those individuals affected and indeed the businesses affected.

I will come shortly to the effect on business, including small business. We are a party of supporters of small business in particular and microbusiness. About 82 per cent of small business, the last time I looked, is actually microbusiness. What impact will this have on microbusiness? What impact will this have on small business? I will come to that in a moment.

We have expressed concern that the combined effect of the recommendations relating to sexual harassment and family responsibilities would be to impose a significant compliance cost on employers and, in our view, it would encourage and facilitate unfounded claims. That is a concern we have. We have not as yet been told that there is evidence to say that this will not happen. We would like to be convinced that it will not happen, but we are very fearful, in the absence of any clear basis for these changes that are set out in this legislation, or evidence of systemic failure of the current legislative regime, about any implementation of those recommendations. Maybe others have a different view. Perhaps there is evidence of different views, and we would like to see it. Maybe others in this place and in the coalition are aware of it, but, based on the evidence put to the committee, we have not been fully convinced of that fact.

Scott Barklamb, from the Australian Chamber of Commerce and Industry, presented at our 2008 inquiry. He presented very forcefully and cogently on behalf of the chamber his views that the changes proposed at the time, in 2008, would put up costs for business, whether they be large or small. We all know that it is a lot easier for the big boys. It is a lot easier for big business to deal with these changes, whether they are to do with sex discrimination or age discrimination or other changes in the workplace. It is hard for microbusiness and small business in particular.

There are two million-odd small businesses in Australia. That is fantastic. They need all the support they can get. I know that in Tasmania, my own state, there are over 30,000 small businesses, and they are the lifeblood of their communities. They need support and encouragement. If we send messages to them through this legislation or other legislation that we do not really care about their interests—and this applies whether or not they appeared before a Senate committee. Guess what? They are busy operating their businesses. We cannot expect them to drop everything and fly to Canberra, Sydney, Melbourne or somewhere—the ‘golden triangle’—whether from a regional area of Tasmania or from some other regional area of Australia, to present their views. Come on, let’s give them a break. Nevertheless, as legislators and policymakers, we must take their views into account. We did that in 2008, and we said the costs were burdensome in terms of the rules, the regulations, that apply to those businesses. They want a fair go for their employees—of course they do, whether they are proprietors of small businesses, large ones or microbusinesses—and that is what we coalition senators are trying to give them.

As members of the coalition, we realise that they are the lifeblood of our communities, particularly in the rural and regional parts of Australia. When we come into this place, it is often said that we are acting in and of ourselves, in our own world, in our own glass chambers. But we want to do what is in their best interests, not just because it is easy for us as legislators to write up this legislation and say, ‘Yes, that would be the easy way to go.’ No, sometimes it is hard. Sometimes the legislation should be a little more complex, and a little bit more thought should perhaps be given to the interests of small business and microbusiness, because they are the families, they are the people, who have their necks on the line. They mortgage their homes and they mortgage their businesses to invest, and they need a fair go all round. That point was well made back in 2008 and, frankly, we have not had adequate representation from the business community to the committee inquiry on this very legislation. If we are just going to bulldoze full steam ahead, I would like to know and be convinced by the minister that their interests have been properly and fully recognised and acknowledged. I would like to have it put on the record by the minister concerned that those interests have been protected.

Likewise, I want to say the same about the education sector. We have had lots of concerns expressed by not just public schools but Christian schools about whether they will be impacted in terms of the employment practices that they undertake, occupational health and safety practices or any other industrial relations concerns that they have. How will it impact them? Will there be an education and awareness program for those in the education sector, particularly Christian schools, which have a particular way of operating? I say good on them. I say congratulations and well done. We live in a free country, a free society, and people are entitled to express their views in different ways and act in different ways. Freedom of association is so important. These are things we want to protect in every way, shape and form.

In this inquiry we did not get adequate representation and evidence from the educational groups and, likewise, from the various church groups. Many of them appeared in 2008. We know what they said and we know what their thoughts were about these particular concerns. So I want to make sure—and I have asked the minister to put on the record—that they are totally convinced that the interests of the education institutions and the interests of the church groups have been adequately considered. Let’s face it: there will be significant costs, red tape and regulation that will flow through. Do not just think this is a simple process.

We as Liberal senators also expressed a view in our report that we did not think there was merit in expanding the powers of the Australian Human Rights Commission. We are of the view that the Australian Human Rights Commission and the Sex Discrimination Commissioner already had adequate and comprehensive powers and resources to fulfil their legislative responsibilities. Of course, they were given further increased funding in the last budget. The view that they are a law unto themselves has certainly been well known and well expressed, both in this place and elsewhere. That view has certainly been put by Liberal senators in this report.

I referred to births, deaths and marriages before and this issue of registration and the costs relating to it. We support responsibility for legislation relating to the regulation of births, deaths and marriages, including the registration of sex changes, remaining with the states and territories. Why should the Commonwealth suddenly take over this area that has been consistently the basis of action for the states and territories? So we support the amendment to the Sex Discrimination Act which would preserve the operation of state and territory laws regarding official records of a person’s sex. That should be noted.

We have made it very clear in our report that the explanatory memorandum to the bill states that the establishment of an age discrimination commissioner would cost some $1 million each year from 2011-12. That is well noted. We accept that. That is the cost of the proposed position to be established. But we strongly encourage the Labor government to provide full disclosure of the cost to business, aged-care organisations and others associated with the establishment of this position. That is our view. We want the government to make that clear, and I wonder if the minister could, perhaps in response to my observations, also provide full disclosure. Aged-care institutions are vitally important. They provide a fantastic service all around this country. They need support. They are under pressure. It has been said that they are in crisis. I know Senator Polley on the other side has referred to the funding constraints in the aged-care sector, not just in my state but elsewhere, and she is right. They need support and encouragement in every way, shape and form. So I would like the minister to confirm the consequences and the flow-on effects of this appointment for those organisations. Full disclosure is required and we would like the minister to come clean on that. We have made our recommendations in the report. They are at pages 45, 46 and 47.

It has been a very worthwhile inquiry. As I say, the 2008 inquiry was far more comprehensive than the current one. Many, many witnesses and key sectors were not represented on the witness panel, and this is an area of specific concern that we have. These are the points that we have made as coalition senators on this committee, and we are seeking answers from the minister as soon as possible to the questions that have been raised by me and the other Liberal senators on this committee. We have made some key points in this report and we have had deliberations as a committee.

The chair’s draft report makes it clear that the bill should be supported, subject to two recommendations, but we do not believe that is adequate. The fact is that the interests of the business community should be properly protected, the interests of the educational sector should be properly protected and the interests of the church community should be properly protected. These are key stakeholders in our community. For the government just to proceed willy-nilly, without adequate consideration of their views, would be a major mistake. So we would like to know from the minister whether he has carefully considered the views of the coalition senators and what they have set out in this report. Businesses and small businesses in communities across this country are vitally important and we want to make sure that their interests are fully and properly protected. As I say, we in the coalition know that they are the backbone of our rural and regional communities in particular. In the suburbs and the cities across the country, small businesses are vital. Their interests should be properly and fully protected. To have one piece of legislation simply go through because it is in our best interests or because it is an easy thing to do, because the department has come up with an easy way to go about it, is not a good thing. Sometimes we have to look harder and deeper, to dig deep and make sure that we get the best results possible and that the legislation is in the interests of the public, not just in the interests of the Public Service.

Debate interrupted.