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Wednesday, 11 May 2011
Page: 2253

Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (12:12): The Sex and Age Discrimination Legislation Amendment Bill 2010 arises principally from the govern­ment's response to the Senate Legal and Constitutional Affairs Committee's 2008 inquiry into the effectiveness of the Sex Discrimination Act in eliminating discrim­ina­tion and promoting gender equity. I should say that the elimination of discrimination and the promotion of gender equity has always been a core value of the Liberal Party and it is a value in which we have been pioneers in giving legislative effect.

The report's very broad recommendations were supported in part by the Liberal senators of the committee and the government's response aligned fairly closely with the position taken by Liberal senators. The bill would make four substantive amendments to the Sex Discrimination Act: to extend the act to ensure equal protection for men as well as for women; to broaden the prohibition on discrimination on the ground of family responsibilities to include indirect discrimination to both men and women in all areas of their work; to establish breast­feeding as a separate ground of prohibition of discrimination; and to strengthen the protections against sexual harassment in workplaces and schools to also include cyber bullying and electronic harassment. he amendments to the Age Discrimination Act provide for the establishment of an age discrimination commissioner within the Australian Human Rights Commission. This is intended to reflect the increasing needs of an ageing population and to address the factors that contribute to age discrimination in the workplace and the broader community.

The Senate committee reported on 1 March. The majority recommended that the bill be passed as drafted. However, Liberal members of the committee reiterated their dissenting findings in the 2008 report that there was no evidence of systemic discrimination on the basis of family respon­sibilities or circumstances of sexual harassment that are not adequately addressed by the existing legislation; that the combined effect of the proposed amendments relating to family responsibilities and sexual harassment would impose significant com­pliance costs; that the provisions are so drafted as to facilitate vexatious claims; and that there was no need to further extend the powers of the Australian Human Rights Commission. I will return to those grounds of concern in a moment. The Liberal senators supported the amendments relating to the appointment of a new office of age discrimination commissioner; the amend­ment which would give equal coverage to both men and women of the operation of the Sex Discrimination Act; the recognition of breastfeeding as a separate ground of prohibition of discrimination; and the amendments in relation to sexual harassment of students.

I want to say something in particular in relation to the prohibition of indirect discrimination on the ground of family responsibilities. The coalition takes the existing prohibition of direct discrimination very seriously, and we strongly support it. It is vital that those seeking to make a contribution to society, and especially those seeking to support their families, are not locked out of opportunities because of a misplaced fear that the demands that families place on workers will detract from their effectiveness or commitment. But the amendment proposed by this bill goes much further than that and has the potential for serious unintended consequences. In fact, I query whether this amendment should be advanced under the rubric of the Sex Discrimination Act at all or whether its proper place is in industrial relations legislation. Indeed, in the view of the coalition, what this amendment reflects is an attempt—perhaps a cynical attempt—to use the suite of discrimination legislation to advance industrial relations agenda which have no place in discrimination law at all.

The explanatory memorandum for the bill is particularly unenlightening. The justifi­cation offered for the amendment is this:

For example, an employer who refused to contemplate flexible working arrangements under any circumstances would particularly disadvan ­ tage people with family responsibilities.

So there we have it, Mr Acting Deputy President: the explanatory memorandum itself—against which, as you well know, the terms of the act would be construed by a court or tribunal—tells us that the intention of the drafter and the intention of the government in putting forward this piece of legislation would be to establish a new prohibition against any employer who refused to contemplate flexible working arrangements under any circumstances if a case could then be constructed that a flexible working arrangement in any circumstances might disadvantage people with family responsibilities. It is bogus and false and a legislative sleight of hand to suggest that that is an attempt to advance the cause of antidiscrimination. What it is an attempt to do, as I said, is to use the Sex Discrimination Act as a cover to promote greater inter­ference in the workplace, not in order to protect people from unlawful discrimination but in order to interfere with the legitimate interests of employers and employees in discussing and arriving consensually at decisions about the arrangements within that workplace.

The amendment would do much more than that. The example which I have cited from the explanatory memorandum is evidently wilfully blind to the true effect of the amendment because it ignores the strict liability it imposes. The bill provides that it will be discrimination if a condition, requirement or practice is imposed or proposed that has or is likely to have the effect of disadvantaging a person with family responsibilities. Thus, a struggling company with a casual workforce would be constrain­ed from cutting the hours of its casual employees because those with family responsibilities, with their inherently lower disposable incomes, could be left in a disadvantageous position relative to those with less pressing expenses. It does the cause of antidiscrimination law reform no good at all if the antidiscrimination laws of Australia are used to advance an industrial relations agenda that is in truth unrelated to the bona fide cause of antidiscrimination in a way that punishes, in particular, employers operating small businesses.

Accordingly, I foreshadow that the coalition will be moving amendments to the bill to omit clause 18—that is, the clause which seeks to extend discrimination on the ground of family responsibilities and to create a prohibition on what is called indirect discrimination—and to omit clause 59, which seeks to extend the prohibition of sexual harassment to include customers and contractors n that issue may I say that no case is made for making an employer responsible for unacceptable conduct by a customer of the employer or a contractor to the employer for which in truth the employer has no responsibility, no oversight, does not condone, sanction or direct and, in fact, has no capacity to control. That is once again an example of using a statute such as this within the category of discrimination law in order to impose inappropriate burdens on employers to govern conduct which is in fact beyond their control. We will also oppose, because we think it to be unnecessary, the extension of the Australian Human Rights Commission's powers proposed by clause 68.

Let me close by reiterating that just as the coalition has always supported the Sex Discrimination Act and has pioneered antidiscrimination legislation in this country ever since the days of the Fraser government, and at the state level as well, we will be supporting most of the measures in this bill. Australia's population is ageing but older workers are finding it difficult to re-enter the workforce and, anecdotally, to have their applications for employment considered on their merits. So there is a strong case, which we believe and sympathise with, for extending the provisions of the legislation to aged Australians and for creating the office of an age discrimination commissioner. But what we will not do is allow the anti­discrimination laws of Australia to be used as a pretext to impose burdens on business which are not truly prohibitions against discriminatory conduct but seek to impose an industrial relations agenda. If the govern­ment wants to amend the Workplace Relations Act to deal with these matters, that is the appropriate place for them to do so, and let us have the debate in that context. But let us not distort the purpose and objects of discrimination laws for such a purpose. And let us not impose additional, in many cases unendurable, burdens on employers—particularly employers conducting small businesses—under the bogus and false pretext of advancing antidiscrimination.