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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