Dissenting report by Liberal Senators


Dissenting report by Liberal Senators

1.1        This dissenting report addresses the inquiry and then focuses on some of the recommendations made in the majority report.

The inquiry

1.2        Liberal Senators are concerned that a sufficiently broad range of views were not represented during the course of this inquiry. In particular, the perspectives of church groups were under-represented and there was no representation of the views of either the business community or education providers on the effect of this Bill for employers.

1.3        During the course of the Senate Legal and Constitutional Affairs Committee's 2008 inquiry into the Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (Senate Report), the Australian Chamber of Commerce and Industry suggested that further amending the Sex Discrimination Act may lead to significant costs, obligations and liabilities for employers and business.[1] In these circumstances, Liberal Senators are particularly concerned at the lack of representation of the business community's views as the Bill would implement some of the recommendations of the Senate Report.

Age Discrimination Commissioner

1.4        Liberal Senators support Schedule 2 of the Bill which would establish a dedicated Age Discrimination Commissioner, to assist Australians, particularly older Australians, in participating more fully in Australian society, including in employment.

1.5        Liberal Senators note that the EM to the Bill states that the establishment of an Age Discrimination Commissioner would cost $1 million each year from 2011-12, when it is proposed that the position would be established.[2] Liberal Senators strongly encourage the Australian Government to provide full disclosure on the costs for business, aged care organisations and others associated with the establishment of this position.

Amendments to the Sex Discrimination Act

1.6        Consistent with the approach in the Senate Report, Liberal Senators support provisions of the Bill which would make technical amendments to the Sex Discrimination Act to implement some recommendations of the Senate Report to:

  • provide equal coverage to both men and women (Recommendation 7);
  • establish breastfeeding as a separate ground of discrimination (Recommendation 12); and
  • protect students from sexual harassment regardless of their age and whether they are harassed by someone from their own or another educational institution (Recommendation 17).

1.7        Liberal Senators note that the Bill would also implement other recommendations of the Senate Report to:

  • expand the scope of the Sex Discrimination Act (Recommendations 13 and 18);
  • broaden the definition of sexual harassment (Recommendations 15 and 16);
  • expand the powers of the Australian Human Rights Commission (Recommendation 30); and
  • provide an exemption to preserve the operation of state and territory laws regarding official records of a person's sex.

1.8        Liberal Senators do not support provisions of the Bill which would either expand the scope of the Sex Discrimination Act or broaden the definition of sexual harassment. There was no evidence presented to this inquiry of any systemic or widespread discrimination on the grounds of family responsibilities, or circumstances of sexual harassment, which are not currently adequately addressed by existing legislation.

1.9        Further, as we noted in our dissenting report to the 2008 Senate Report, there is little to no legislative gap in coverage with respect to sex discrimination and sexual harassment. However, there are overlapping obligations under federal, state and territory anti‑discrimination legislation, as well as under workplace relations legislation, which cause considerable inefficiencies for businesses and increase their compliance costs.

1.10      Liberal Senators are concerned that the combined effect of the recommendations relating to sexual harassment and family responsibilities would be to impose significant compliance costs on employers and would encourage and facilitate unfounded claims. In the absence of any clear basis for these changes, or evidence of systemic failure of the current legislative regime, any implementation of these recommendations is not supported.

1.11      Liberal Senators also oppose the expansion of powers of the Australian Human Rights Commission and are of the view that the Human Rights Commission and the Sex Discrimination Commissioner already have adequate powers and resources to fulfil their legislative responsibilities.

1.12      Liberal Senators also support responsibility for legislation regulating births, deaths and marriages, including registration of sex changes, remaining with the states and territories. Consequently, 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.

Recommendation 1

1.13      Liberal Senators recommend that the Bill be amended to remove provisions which implement the following recommendations of the 2008 Senate Report:

  • Recommendations 13 and 18 – which would expand the scope of the Sex Discrimination Act;
  • Recommendations 15 and 16 – which would expand the definition of sexual harassment in section 28A of the Sex Discrimination Act; and
  • Recommendation 30 – which would expand the powers of the Australian Human Rights Commission.

Recommendation 2

1.14      Subject to the preceding recommendation, Liberal Senators recommend that the Senate pass the Bill.

Senator Guy Barnett                                          Senator Stephen Parry

Deputy Chair

 

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