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Monday, 30 August 2021
Page: 5431


Senator KENEALLY (New South WalesDeputy Leader of the Opposition in the Senate) (10:02): I rise to speak on the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021. At its heart this private senator's bill seeks to acknowledge a simple truth—that parents of stillborn babies are parents too. In Australia six babies are lost to stillbirth each day. That's approximately 2,200 babies every year, or roughly one in every 135 births in our country. The rate of death from stillbirth is higher than the national road toll and remains the No. 1 cause of death for infants. Sadly, it has been like this for a very long time. The rate of stillbirth has remained stubbornly high in Australia for over 20 years, and 20 years is about as long as we have been keeping track of the statistics.

Since 2018 this chamber has sought to shine a light on this particular issue. These efforts have been uniformly bipartisan and have delivered real outcomes for Australian families. In particular I reflect on the work of the Senate Select Committee on Stillbirth Research and Education, an inquiry that I believe demonstrated the very best of what we can achieve in this place. Through that inquiry the committee heard evidence, both in person and through written submissions, from hundreds of parents, advocates, medical experts and researchers about the impact of stillbirth in our community. Their testimony shaped and informed a set of recommendations designed to address the tragedy of stillbirth in this country. For the first time in our nation's history we now have a firm foundation to shape and inform our efforts to address stillbirth in Australia, to save babies' lives.

I thank my colleagues across the chamber for their support for this inquiry and other related motions that have sought to highlight the experiences of parents of babies born still and to commemorate their immeasurable losses. I particularly acknowledge the chair of that inquiry, Senator Malarndirri McCarthy; the deputy chair, Senator Jim Molan; and Senator Janet Rice and Senator Catryna Bilyk.

Now that we have these recommendations from the Senate select committee on stillbirth, it's important that we implement them. We have a long way to go in addressing the issue of stillbirth in our community and much of the committee's work remains unrealised—although I do acknowledge and appreciate the efforts of the Minister for Health and Ageing, Greg Hunt, to ensure the delivery of a national stillbirth action plan. Today, with this private senator's bill, we seek to continue the work the committee started, with the welfare of Australian families and particularly parents front of mind.

This amendment to the Fair Work Act seeks to address inequalities in our employer paid parental leave scheme. We don't often talk about stillbirth in our society. It is too traumatic; it is tragic; it is raw. We often don't talk about the experiences of parents whose child is stillborn—what it means to be the parent of a child you don't get to bring home. The unique parental responsibilities required of parents of stillborn children include making decisions about autopsies, attending follow-up medical appointments, selecting gravesites or organising cremation, and arranging funerals and other commemorative services. Parents are required to do all these things during a time of intense mourning and grief while attempting to recover both physically—the same as any other parent who gives birth—and psychologically, given the extreme trauma and grief of stillbirth. We rarely, if ever, talk about these experiences. Is it any wonder workplace paid parental leave policies haven't considered these experiences either?

The Senate select committee heard evidence from many parents about the impact of employer paid parental leave policies that do not include provisions relating to stillbirth. We heard that workplace policies are often too narrow, too rigid, too prescriptive—or, indeed, silent. We heard that these policies rarely consider the realities of being a parent of a stillborn baby or even the reality of stillbirth itself. The impact of this blind spot is immense. In one case, a mother who gave evidence to the committee was forced by her employer to return to work just 11 days after her baby was stillborn. She had given birth. She had barely recovered from the physical act of giving birth. She had not in any way completed the recovery from her grief and her trauma. Yet she was required to return to work.

The committee did not find malice or ill intent in how these policies are formulated. It is simply a consequence of our silence on stillbirth—a repercussion of our inability to discuss things that are tragic and difficult and therefore tacitly allowing gaps in the safety net that is designed to support all parents. The system is failing because of a misunderstanding of the realities of stillbirth and ambiguous workplace policies that fail to acknowledge a public health issue that impacts more than 2,000 Australian families every year. A report by PricewaterhouseCoopers found that mothers who returned to work for financial reasons following a stillbirth had a productivity rate of 26 per cent of their normal rate after 30 days. Clearly employer paid parental leave schemes that ignore stillbirth help nobody. There is a better way. We know that, because a number of major Australian companies have led by example and changed their policies to acknowledge stillbirth and to ensure that their employees are properly provided for, regardless of the circumstances of their baby's birth.

I thank those companies for their leadership on this issue and the support they extend to families in a time of immense pain and grief. This is best practice in this space, and as a parliament we should enshrine it in law in order to protect all Australian families. I note that the public paid parental leave scheme that is provided by the Commonwealth already grants paid parental leave to parents of stillborn babies. We should expect that employer paid schemes do the same.

The very first unanimous recommendation of the bipartisan Senate Select Committee on Stillbirth Research and Education was:

… that the Australian government reviews and amends the Fair Work Act 2009 (Cth) and provisions relating to stillbirth in the National Employment Standards (NES) to ensure that:

provisions for stillbirth and miscarriage are clear and consistent across all employers, and meet international best practice such as those contained in the Ausgrid Enterprise Agreement; and

legislative entitlements to paid parental leave are unambiguous in recognising and providing support for employees who have experienced stillbirth.

In line with this recommendation, this bill provides clarity by enshrining in law an expectation that employers will provide the same support to parents regardless of the circumstances of the birth of their child.

So much of what we learned from the stillbirth inquiry can be distilled into this: silence is deadly. Our inability as a community to discuss stillbirth has driven tragic outcomes for too long. We have allowed stillbirth to be suffered in silence, as a personal tragedy rather than as a public health issue. It is through acknowledging this issue that we can achieve better outcomes for parents of stillborn children. This private senator's bill reflects this by shining a light on the issue of stillbirth. We can help Australians in their time of need.

With this bill Labor seeks to bring necessary reforms to our paid parental leave scheme in line with recommendations of the bipartisan Senate Select Committee on Stillbirth Research and Education. This bill will amend the Fair Work Act 2009 to ensure parents of stillborn babies can access the same quantum of employer paid leave they would have been entitled to if the pregnancy had ended in live birth. For parents of stillborn babies, this bill would explicitly preserve their entitlements to employer paid parental leave regardless of whether the entitlement is legislative or one arising under an industrial instrument. The bill further outlines the standard evidentiary requirements for accessing said leave, outlines the requirements for an employee to alter or cancel their leave, in full or in part, and ensures that an employer can't cancel the leave, in full or in part, in the event of the employee having a stillbirth.

The bill will complement a previous bill introduced by the government, the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020, which improved access to unpaid parental arrangements for parents of stillborn babies but did not consider issues surrounding employer paid parental leave entitlements as recommended by the committee. This was the intent of the committee and its recommendations and we ought to address it fully.

I am grateful to the Senate for the opportunity to speak to this bill today. Since my time began in this place, I have always found this chamber to be supportive of any effort to address stillbirth in our community. I note that we will soon commemorate International Pregnancy and Infant Loss Remembrance Day, on 15 October. It is the first time that the parliament will formally recognise this day after a motion passed in this place in February to officially and eternally honour that date in remembrance of the many, many lives lost to stillbirth and miscarriage each year. That motion was but another step in a sustained effort in this place over the last few years to recognise, understand and ultimately reduce stillbirth in our community. Like all such efforts, that motion enjoyed the broad support of this place, as all efforts to address stillbirth should.

It was in this spirit that I wrote to the Attorney-General, Michaelia Cash, about this bill, and I thank her for agreeing to work constructively with Labor as we pursue these reforms. I will continue to work with the Attorney-General to ensure that we can secure an outcome for Australian families. I also want to acknowledge the support of industry stakeholders, including the ACTU, the Business Council of Australia and the Australian Chamber of Industry and Commerce. The broad support for this bill is heartening and it reflects the determination of the broader community to reduce the rate of stillbirth in our community and support those who experience it.

I would also like to acknowledge and congratulate Stillbirth Foundation Australia for its efforts in the past six years to champion the cause of ensuring that parents of stillborn babies are able to access paid parental leave. One of Australia's greatest prime ministers, Paul Keating, once said:

… the great things about Australian social democracy reflect a fundamental belief in justice … our capacity over the years to go on extending the realms of participation, opportunity and care.

With this bill, we seek to continue that tradition here today. These reforms are just, because they reflect the reality of stillbirth for so many Australian families. They shine a light on this issue that is often ignored by society because it is too difficult or tragic to contemplate.

I again reiterate that this legislation is a response not to nefarious practices by employers but, rather, to a lack of clarity that exists in the shadow of an issue that impacts so many but is so rarely discussed. We have an opportunity here today to remove that ambiguity. This bill will expand our circle of empathy on a subject that for too long has been considered taboo. With it, we explicitly acknowledge the role of parents with children who are stillborn, and we seek to do more to increase their participation by expanding a scheme that is designed to support parents regardless of whether their child is born still or born alive. By doing so, we increase their opportunities and their access to care and support at a time when they need it most. I thank senators for the contributions that they have made to date and that they will make on this bill. I acknowledge the work of families, parents, advocates, medical professionals, counsellors and others who work tirelessly to address stillbirth in our community, and I commend this bill to the Senate.