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Legal and Constitutional Affairs Legislation Committee
23/01/2013
Human Rights and Anti-Discrimination Bill 2012

MAMMONE, Mr Daniel, Director of Workplace Policy and Director of Legal Affairs, Australian Chamber of Commerce and Industry

[10:03]

ACTING CHAIR ( Senator Humphries ): Welcome. Thank you very much for appearing today. We have your submission, numbered 411. Do you wish to make any amendments or alterations to that submission?

Mr Mammone : No.

ACTING CHAIR: I invite you to make a short opening statement. We have a lot of witnesses and not much time, so could you please make your statement reasonably short. The committee will then proceed to ask you some questions.

Mr Mammone : Thank you. The Australian Chamber of Commerce and Industry welcomes the opportunity to participate in this inquiry which is examining the government's exposure draft bill, the Human Rights and Anti-Discrimination Bill 2012. ACCI would like to acknowledge the constructive dialogue it has had with the government over the course of the year.

Unfortunately, the timetable which has been established by the committee for providing a written submission to this inquiry has now allowed ACCI to provide a comprehensive submission addressing every aspect of the exposure draft, which was released a month prior to the closing date of written submissions. The exposure draft represents, for the first time, a significant rewriting of federal antidiscrimination law in Australia. The exposure draft and accompanying explanatory material spans over 400 pages and, as such, it is not possible to consider each clause of the exposure draft to assess its intended impact and any unintended consequences. The written submission should be understood to be a preliminary assessment of the exposure draft which is made without prejudice to ACCI or our members' further consideration.

ACCI provided the government in February 2012 with a detailed written submission in response to the government's issues paper. ACCI provided in-principle support to the government's policy goal to consolidate antidiscrimination laws into one statute at the federal level. ACCI continues to have a legitimate interest in advocating the views on behalf of employers and the business community on antidiscrimination legislation, and the government has provided a number of mechanisms for the business community to provide their views since it released its discussion paper in September 2011.

The government indicated its intention to embark on an ambitious project to consolidate the five separate pieces of antidiscrimination acts in 2010. The then Attorney-General and the then Minister for Finance and Deregulation announced on 21 April 2010 that the government intended to streamline antidiscrimination legislation into one, single comprehensive law. There was no previously articulated election commitment to embark on such a reform other than to create two new additional protections.

The government by deliberately choosing to deliver this project as a joint initiative through the Better Regulation Ministerial Partnership Stream was ostensibly a positive signal that there would be beneficial outcomes to business and employers who are duty holders under existing legislation applying at federal, state and territory levels. A further media release by the then Attorney-General, the Hon. Robert McClelland, and Senator Penny Wong on 22 September 2011, which accompanied the release of the discussion paper, further indicated and reaffirmed the original policy intention of the government.

ACCI has not been able to engage in extensive discussions with its members and the business community since the exposure draft was released. However, the following issues have been identified in ACCI's written submission to this committee inquiry as either (a) significant issues for the committee's attention or (b) contrary to ACCI's primary written submission in response to the exposure draft and will require reconsideration by the government. This submission should be read in conjunction with ACCI's earlier comprehensive submission, which is attached to this submission.

Finally, ACCI commends the submissions that have been received by this committee from ACCI members—in particular, Master Builders Australia, the New South Wales Business Chamber through ABI, and the Victorian Employers Chamber of Commerce and Industry.

ACTING CHAIR: Thank you, Mr Mammone. I will kick off with a question. You refer to the problem that the legislation does not define what is meant by things like political opinion, social origin, medical history and so forth. Assuming that they are appropriate protected attributes—and I assume you agree with that—do you think that workable definitions of those things are actually achievable or are the concepts too difficult to pin down to make them amenable to clear definition for the purposes of certainty for, for example, employers?

Mr Mammone : In our submission we have indicated at page 3 issues we have identified with definitions. We have expressed concern that a number of these attributes in the exposure draft have not been defined and therefore it is up to the courts to determine that, which exposes employers and aggrieved applicants to litigation to determine what the nets and bounds of the new terms in the exposure draft if it becomes law.

With regard to the new protected attributes, we do not support the inclusion of the protected attributes for work related matters in the consolidated bill. This was not something that was expected as part of the consolidation exercise. Currently there is no avenue of recourse to the courts for an aggrieved person to litigate on those protected attributes. I go to the issues of definitional clarity. Obviously it is for employers as duty holders and to provide education to employees, for which they are vicariously liable. I can imagine a situation where one of our members, such as VECCI, is presenting a seminar to members. On the screen a slide shows one of the new protected attributes. Is political opinion. What does this mean? There is no clarity or further explanation, apart from looking at what previous courts have said in the past on various issues.

Senator BRANDIS: Mr Mammone, I just want to correct something, because I would not want us to fall lazily into the habit of adopting the government's rhetoric. This has been described as a consolidation of five existing anti-discrimination statutes. The Attorney-General has said that. The cabinet secretary on television and in a debate with me last night said that. But it is not, is it? A consolidation means you put a pre-existing number of elements together into a generic single bill. But as you yourself have said, Mr Mammone, there are new protected attributes identified in this bill that are no part of the pre-existing five bills. There are other aspects of this bill that are not to be seen in any of the pre-existing five bills.

Do you agree with me that this is more than a consolidation, that when one considers the new elements of this bill it not merely consolidates the existing law but takes it beyond where the pre-existing five bills were?

Mr Mammone : I guess we would have to say that the exposure draft, as it is drafted presently, does not represent a consolidation of the existing five statutes and we have indicated that the main issue, we say, departs from the existing regime, so it is a misnomer to characterise the current exposure draft as consolidating the five existing acts, and the explanatory materials indicate there will be costs to employers as a result of the changes—updating policies, for example, and training requirements. There obviously are major significant changes.

Senator BRANDIS: None of which are features of the pre-existing five anti-discrimination statutes, right?

Mr Mammone : To be accurate, as our analysis has so far indicated, the new test is a departure in terms of discrimination. There are elements that look like they are derived from at least one of the four main statutes, but we look at it as a total package.

Senator BRANDIS: Yes.

Mr Mammone : And as a total package it is not a true consolidation exercise, in that sense. We are disappointed so far with the exposure draft and hope that the government will take on board the issues that have legitimately been raised by industry through this forum.

Senator BRANDIS: I suppose the only reason this term 'consolidation' has crept into the language is the Prime Minister and her senior ministers, with characteristic dishonesty, have called it a consolidation—when we know that it is not.

Senator FURNER: I do not think those sorts of comments are beneficial in respect to the discussions of this particular bill before—

ACTING CHAIR: We will not adopt that procedure for the rest of the hearings. I am happy to work by that rule but it has to be consistently applied. You might proceed, Senator Brandis, without the embellishment please.

Senator BRANDIS: I have finished.

Senator FURNER: Mr Mammone, the Business Council of Australia submissions indicate that they have an issue associated with the shifting of the balance or the burden of proof, in favour of applicants. I am wondering what the position of the ACCI is on this particular area. Do you support that view or do you have something else to indicate?

Mr Mammone : We were fairly clear in our written submission in response to the government's issues paper in that we did not see a need to alter the existing burdens and legal tests. Whether it is evidentiary burden or legal burdens we do not support what is being called a shifting burden of proof. We have made that clear in our submission to this inquiry. These are significant issues. Once you start changing the burdens of proof and who needs to establish certain factual elements of conduct and defences et cetera, it is something which, in a consolidation exercise, should not be a feature, if it really is consolidating the existing arrangement. The existing arrangement is that the applicant bears the onus of proof, largely. There is obviously some indirect discrimination where it shifts, but by and large we would probably support the BCA's submission—having not read the BCA submission.

Senator FURNER: It is only a brief, only a few pages. Notwithstanding that, surely if you create a scenario where a job applicant presents themselves regardless of what attribute may fall under either of the five current acts in terms of a situation where they foresee, as a result of not being a successful applicant for a job, surely the evidence sits with the respondent to demonstrate the reasons why that applicant was unsuccessful in getting the job as associated with establishing the grounds that they were not discriminated against in that particular circumstance.

Mr Mammone : Our view is fairly consistent. It has been articulated to the government in terms of where we think the ownership should remain and that should be with the applicant.

Senator FURNER: So you do not agree that the respondent would have the information substantiating the reasons why the person was not discriminate against?

Mr Mammone : The respondent may, depending on who the respondent is. If we are talking about vicarious liability, if an employee or an agent of the employer committed the awful conduct, that person would then have to sit in the witness box, so to speak, and give direct evidence in terms of what they had in mind. The High Court decision in the Barclay matter, which was looking at the adverse action provisions in the Fair Work Act, illustrates that, with the reverse onus of proof under the Fair Work Act, you need the primary decision maker to explain the decision they took. If we are talking about how this might apply in the real world across small businesses across Australia, which make up the bulk of employment entities, basically that change, coupled with the changes to costs, we see would increase the net litigation in terms of whether an applicant would choose to use these new provisions to follow an application, as opposed to listing state or territory laws which do not have the reverse onus of proof. This is a fundamental departure from existing antidiscrimination statutes.

Senator BRANDIS: There seems to me to be an entire misunderstanding by some as to what reversing the onus of proof means. If you look at clause 124 of the bill, you see that there is a presumption created against the respondent, unless the contrary is proved—those are the words of clause 124. I think your point, Mr Mammone, is that if an applicant brings a case and the respondent goes into the witness box, inevitably they are going to be asked by the applicant's counsel in cross-examination about the impeached decision. That is not the same thing as reversing the onus of proof, is it? But it is not as though there will not be an occasion given to the applicant to interrogate the respondent about the reasons for the decision?

Mr Mammone : I am not sure whether I can provide a fairly detailed response.

Senator BRANDIS: It was more in the nature of comment, but my point is that people should not elide the two concepts of the respondent being required to explain something, as they inevitably would be, under cross-examination in the witness box at the hearing of one of these applications, and an actual formal reverse of the onus of proof and the creation of a formal legal presumption.

CHAIR: The witness does not necessarily need to answer that question. We might move on to Senator Wright.

Senator WRIGHT: I would like to ask some questions about this too, Mr Mammone. I am not sure that it is quite accurate to talk about this as being a reversed onus of proof in any case. My understanding of the bill is that it is now going to be a shared onus of proof whereby there is a requirement on an applicant to make a prima facie case that there has been some form of discrimination and then, at that time, the burden of proof shifts to the respondent. My understanding of the rationale for that is that usually it would be the respondent who would be more likely to have possession of evidence as to why a particular decision was made or a particular action was taken and would then address that prima facie case that has been established. So there is a bar that has to be reached first and then the burden of proof will shift to the respondent, who will then have responsibility in terms of the evidence they may have at their disposal. I would ask you: isn't it more efficient, in terms of court time, resources and legal costs, for the party that is more likely to have possession of the evidence—because they are the party that took the policy, made the action or made the decision—to bear the burden of producing that evidence?

Mr Mammone : I think to answer that we have to go back a step in terms of what has changed with the tests, because the onus of proof is linked to the tests. What is being proposed is a fundamental rewrite of the existing tests for proving direct discrimination, not so much for indirect discrimination, on my reading, but I am hesitant to give any concluded view about the two tests that are proposed. We are now shifting to a concept more akin to the adverse action provisions under the Fair Work Act which is linking adverse treatment based on a prohibited ground rather than saying: is there discrimination and how do we assess discrimination? We do that based on comparators. We acknowledge that is not a straightforward test that the courts have had to grapple with as much as the litigants and their advisers, but we would not need to talk about shifting onuses of proof if we kept the current test. This is the essential point that we are raising.

We look at it on a total package basis. What are an employer's liabilities as a duty holder as a result of these new proposals? If the new law means that an applicant is able to make a claim and basically hedge their bets on whether the employer will defend the matter in the courts, then the employer, knowing full well that they will have to expend time, money and resources in legal fees et cetera to defend the matter in court and will not necessarily be able to recoup those costs if they are successful, will ultimately make a commercial decision in a number of cases to settle the matter before it goes to court. So these issues on the whole probably will not even be ventilated in the court; they will be determined between the parties before the matter is judicially determined. These are some of the issues we have raised in our comprehensive submission to the government in early 2012 and reiterated before this committee.

I think you have accurately described what has been said in the explanatory materials as being the intent in terms of a shift in burden. What is a shift in burden? I am not quite sure what a shift in burden is. I know it has been called a shift in burden.

Senator BRANDIS: It has been called a shift in burden—

Senator WRIGHT: With respect, Senator Brandis, I am interested in hearing from Mr Mammone.

Mr Mammone : It is not something I am familiar with because I do not think it is a feature of the current discrimination provisions, either state, territory or federal. It is hard for us to assess what the government has said is intended in that respect.

Senator WRIGHT: Do you have a concern that the shared burden of proof would result in unmeritorious matters succeeding at hearing, either before the commission or in courts?

Mr Mammone : We have the experience to date unfortunately with the unfair dismissal system, for example, generating what has been colloquially described as 'go-away money', whereby the employer makes a decision to settle the matter before it goes further, even though they think they have a valid reason or defence. Also, through feedback through our membership, these things also arise in other spheres, such as antidiscrimination laws. That is not something we would like to see in a consolidated antidiscrimination bill. We generally thought that the consolidation exercise would lead to better outcomes for both applicants and businesses who are duty holders. That was expressed time and time again throughout the exercise. Ultimately, we can only judge what the exposure draft is before this committee and before us and make as best assessment as is possible as to what the intended consequences and unintended consequences are.

Senator WRIGHT: The alternative concern, arguably, from the point of view of many people who have made submissions—and this has given rise to some of the rationale for the shifting of the burden of proof, the sharing of it—is that there are—

Senator BRANDIS: It is two completely different concepts—

Senator WRIGHT: They are completely different, but they are not mutually incompatible, Senator Brandis. Indeed, it is a shared burden of proof under this draft provision and it has shifted—it has changed. So the concerns that have been raised are that there are great numbers of people who have certainly perceived that they have been discriminated against, and indeed may well have been, but it has never been tested because the situation has been too difficult when they have not had the ability to obtain the evidence that is needed. The bar, in the current situation, has been too high. I ask you about that—competing harm, essentially, from the scenario that you are putting, and that this is actually designed to ensure that where people have legitimate concerns about having been discriminated against that they can actively do something to ensure their own protection.

The other aspect of that is: isn't there fairly clear evidence in research that has come out of the US and so on that having a more equal workplace in fact is actually beneficial to business in many ways—particularly in profits, and productivity as well? We are talking about competing difficulties, and I am putting to you that this is in fact designed to do this, as opposed to where you are saying that there is evidence of 'go away' money and that there are a lot of people who have not ever been able to get the protection that the law has ostensibly provided them with because they have not had the ability to make that case.

Mr Mammone : I think, to be fair, that in the difficulty in making a complaint, and the crucial decision of whether to litigate, that those are significant decisions for any individual. So I do not cavil with the fact that there may be some individuals who have decided not to proceed to launch a claim or a suit against an employer or co-worker et cetera. I do not have any figures or data, and the inquiry does not seem to have any of that sort of data in front of it. But what we are dealing with is what the government said that they would do in this consolidation exercise. I am using what was described by the government.

Part of the joint media release on 22 September 2011, which we have alluded to in our submission, says:

Bringing the laws together into a single, streamlined and comprehensive antidiscrimination act will improve the quality of the regulatory regime by simplifying and clarifying obligations and also reducing compliance costs for business in training and educating staff on discrimination matters.

Unfortunately, considering the total package before us, what the government intended to do—what this inquiry is set up to inquire into and to look at the exposure draft—we cannot agree that that has delivered those laudable policy objectives which were announced by the government.

There may be some benefits in changing the onus of proof for applicants. There will be, undoubtedly—the government has said as much in the explanatory materials. We are here to represent the interests of the duty holders, and obviously the balance has to be right. But if we are talking about consolidating the existing laws, this is not achieving that.

There may be a policy debate about shifting burdens of proof and tests; we did not think that that was part of this exercise. If there is a debate to be had about whether we should have the existing burdens of proof and tests, and the exemptions that apply to a whole range of areas, including employers and religious organisations, then that is a debate that we are quite willing to be involved in, and have. But this is not what we need to debate.

Senator WRIGHT: Mr Mammone, with respect, I think you are in the middle of that debate right now.

Senator RYAN: Is it your view that a combination of what I will describe as the reversal of the onus of proof—I am sure that someone at a criminal trial would treat it as a reversal after a prima facie case had been established if they were required to prove their own innocence—and the no-cost jurisdiction and the dramatic expansion in protected attributes will lead to what you described earlier in a colloquial phrase as 'go-away money' to avoid the cost of litigation, particularly for smaller enterprises, as we have seen with respect to unfair dismissals in certain instances?

Mr Mammone : The feedback that we have received to date—it is only preliminary feedback in the time available—is that there is a concern, a well founded concern amongst SMEs, particularly small businesses, that they will be exposed to increased risk of litigation. Whether they put in place the best-practices policies and do all the training, employers cannot prevent, 100 per cent of the time, people in the workplace doing unlawful things. This is the concern we have with the unfair dismissal system and the adverse action provisions which, we know from the feedback to us, are generating the colloquial go-away money.

Senator RYAN: Is that a way to avoid the cost of further litigation?

Mr Mammone : One of the factors involved in determining to settle the matter is to avoid extra time, cost and inconvenience associated with defending it in arbitration or court proceedings.

Senator RYAN: I want to turn, particularly, to smaller businesses here. One of my colleagues this morning, in the defence of the reversal of onus, referred to who holds the information. One of the arguments put is that it is much easier for a company the size of Woolworths to manage this legislation than it would be for a small retailer that might employ family members and one or two part-timers, because they would obviously have very different HR processes and very different retention of information of conversations. Do you think this exposure draft fails to take into account the differences in the way small and family enterprises are run, particularly with the way they manage staff and manage interactions with customers, and particularly in the context of the dramatic expansion in the number of protected attributes?

Mr Mammone : I think that one of the biggest issues currently for small businesses to navigate is the application of multiple sets of laws applying for virtually the same conduct. In Victoria, for example, a small business with a couple of staff will need to comply with the Victorian antidiscrimination legislation; if this becomes law, the federal consolidated discrimination legislation, which has different tests and different protected attributes et cetera; as well as other legislation like the Fair Work Act, which also covers discrimination related matters. It is that net burden in trying to understand, as a duty holder, what my obligations are. And if I am spending all my time asking, 'How do I comply with the law as it currently stands?' that detracts from what employers are primarily interested in doing and what their workers are interested in participating in: running a business and hopefully making enough money so that it can be viable, keep people on the books and employ new people. What we would not want to see, as a result of this consolidation exercise, is small business diverting a lot of resources to trying to understand how to comply and defending their actions before the Human Rights Commission, conciliation proceedings or the courts. It would take time out of the workplace to go and participate in those proceedings.

Senator RYAN: So is it your view that this exposure draft would represent an increase in the regulatory burden upon small business because of the increase in the number of protected attributes, which does dramatically increase the exposure to potential litigation or claims?

Mr Mammone : It is certainly not a net reduction in the regulatory burden.

Senator RYAN: So it does not achieve your objective, which was consolidation to make compliance easier for SMEs.

Mr Mammone : As we said, the government's policy intention was sound. What we hope will result from this inquiry is that this exposure draft—which is not a bill—goes through another filter and another process and really does represent a consolidated version of the existing framework, because the suggestions that industry had made to government before it finalised the exposure draft were addressing those issues. Small business was telling us that the current definition of 'disability', for example, is very wide, and it has been discussed in earlier Senate committee inquiries. So it is those sorts of issues that we want the government to look at in terms of how the existing regime—not the consolidated bill but the existing regime—affects SMEs, particularly small business, and what things could be improved with the existing regime that would make a difference to small business and so on. I would unfortunately have to agree with you that there will be a net increase to small business based on our analysis of the bill.

Senator RYAN: This is my final question. I am not sure if you have had the chance to look at some of the other submissions, but the previous witnesses, the ACTU, wanted to add to the list of protected attributes a person's criminal record so that people could not be discriminated against on the basis of, presumably, having a criminal record. So many SMEs are in fact family businesses which have spouses, children and others working in businesses. Does ACCI have a view, or are you consulting at the moment, on that particular suggestion? I would imagine that many of the family businesses I know would be troubled by all of a sudden having to establish, if they did discriminate on that basis—and of course they would have to be willing to explain this, illustrate it and win the case if a claim were made—that they might have some discomfort about family members working with someone with a criminal record.

Mr Mammone : As I understand the government's position on that particular attribute, it was not included in the consolidated bill, for sound reasons.

Senator RYAN: Yes, that is why I asked. It was another suggestion.

Mr Mammone : We had indicated to the government that the existing work-related protections, based on ILO conventions, should not be transplanted in a consolidation bill. Unfortunately, the government has chosen to include the other protections and has sensibly left out the criminal record provision. The criminal record provisions do have some work currently in terms of the ability for the Human Rights Commission to conciliate and make a report, and there are guidelines that we have provided input into and that the Human Rights Commission have issued. I think they have already issued, very recently, guidelines on employer best practice in terms of relying on such information for making recruitment decisions et cetera. So we are obviously glad that the government has not included that particular attribute in the consolidated bill, and we would be concerned if the government acted on the ACTU's requests. I have not read the ACTU's submission.

Senator RYAN: Thank you.

ACTING CHAIR: Are there further questions?

Senator PRATT: Just very briefly, I note that your submission says that you are pleased that representative actions are not included in the exposure draft, but your submission before us on that was probably before the government's inquiry. But it does not articulate why that is the case.

Mr Mammone : Sorry—why we support—

Senator PRATT: Why you oppose representative actions. It is not articulated in your submission before us.

Mr Mammone : Yes, I understand. It is because it is not part of the existing framework of anti-discrimination laws. If it were to be included, the Attorney-General's own strategic framework has pointed out—and we have provided input—that changing those sorts of provisions would have the potential to increase litigation. So that is something we did not support in terms of this consolidated exercise. Obviously there are others that have views contrary to that; their view is that there should be representative actions. But we did not feel the need to further explain it in this committee inquiry. But those are the main reasons why.

Senator PRATT: So the only reason you can give is that you believe it would increase the amount of litigation? There is no intrinsic reason in relation to the nature of the cases themselves that that should be the case?

Mr Mammone : I could go into further detail, and I am happy to take that on notice, but there are issues associated with the objectives of, perhaps, the person that is not the complainant in a particular matter in representative actions. So there are a whole range of issues and associated policy reasons why we would oppose representative actions.

Senator PRATT: In relation to new attributes, I am a little bit confused by the position you have taken, noting that you have given clear support in the past to the inclusion of gender identity and sexual orientation.

Mr Mammone : That is quite simple. Those were two election commitments by the Labor government to which we had no in-principle objection. The only issue we wanted to discuss with the government about those two protected attributes is the definitions of them, to ensure it was clear to duty holders what that means. There is no inconsistency, and I apologise if it appears that there is in our submissions, but we do acknowledge that it is attributes that are picked up in other jurisdictions.

Senator PRATT: Where you say the expansion of the protection attributes is contrary to the position articulated in its earliest written submissions, you still retain support for those two grounds provided that is clear?

Mr Mammone : Yes. We only cavil at the new protected attributes based on the ILO conventions, which are currently not able to be ventilated through the courts. Those are the ones that we oppose.

ACTING CHAIR: I thank both of you for appearing today and for your submission. I think you have got some questions that you have taken on notice from Senator Pratt and possibly others.

Proceedings suspended from 10:41 to 11:06