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senate vote 2024-09-19#8
Edited by
mackay staff
on
2024-09-22 12:45:12
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Title
Bills — Australian Human Rights Commission Amendment (Costs Protection) Bill 2023; in Committee- Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 - in Committee - Review
Description
<p class="speaker">Hollie Hughes</p><p>The question is that the bill stand as printed. Senator Scarr.</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2024-09-19.99.1) introduced by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent), which means they failed.
- ### Amendment text
- > *(1) Page 2 (after line 12), after clause 3, insert:*
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- > *4 Review of operation of amendments*
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- >> *(1) The Minister must cause an independent review to be undertaken of the operation of the amendments made by this Act.*
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- >> *(2) The review must commence no later than 2 years after the day on which this Act receives the Royal Assent.*
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- >> *(3) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.*
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- >> *(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.*
<p class="speaker">Paul Scarr</p><p>I think Senator Hanson-Young was before me.</p> <p class="speaker">Sarah Hanson-Young</p><p>I was going to ask that perhaps we start moving on some of these amendments and ask that the question be put, but if you want to keep your contribution short, Senator Scarr, then I will, in the spirit of generosity, allow you to ask one more question.</p> <p class="speaker">Paul Scarr</p><p>I appreciate Senator Hanson-Young's expression of generosity. However, I have a number of questions.</p> <p class="speaker">Hollie Hughes</p><p>Senator Hanson-Young, Senator Scarr has the call.</p> <p class="speaker">Sarah Hanson-Young</p><p>No, he didn't actually—</p><p>The TEMPORARY CHAIR: He does have the call.</p><p>The TEMPORARY CHAIR: Senator Hanson-Young, Senator Scarr has the call.</p> <p class="speaker">Paul Scarr</p><p>Minister Farrell, before we hit the hard marker I was asking questions in relation to the position of the Australian Human Rights Commission on the cost regime that's proposed in this bill. The minister who was then at the table, Senator Watt, said the Australian Human Rights Commission had proposed cost provisions which were similar to section 570 under the industrial relations legislation. My understanding was that the Australian Human Rights Commission had actually proposed a different cost regime, and I just wanted to give you an opportunity to perhaps correct that record.</p> <p class="speaker">Don Farrell</p><p>Thank you, Senator Scarr. Of course, I wouldn't dare correct anything that Minister Watt has said in this chamber. In order to make clear the position on the question that I think you're asking: the government considered a range of cost models and determined that this modified equal access model, as adopted in the bill, would address the significant barrier presented by costs in a way that balances the interests of both parties.</p><p>The government's reforms will be a significant improvement in the status quo. Currently, the default position is that the costs follow the event. This means that an unsuccessful party would be ordered to pay the costs of a successful party. For people who have experienced harassment and discrimination, this is a significant deterrent to commencing proceedings. This uncertainty is heightened by the lack of legal precedence in discrimination law matters. In contrast, the soft cost neutrality approach, recommended by the Australian Human Rights Commission, would require each party to bear their own costs in unlawful discrimination court proceedings. This means that, even where an applicant is successful, they may still be out of pocket due to the costs exceeding the damages. This model provides less certainty to applicants about how costs would be awarded. Stakeholders have raised concerns that this model can impact the applicant's ability to secure a no-win no-fee legal representation.</p> <p class="speaker">Paul Scarr</p><p>Minister, I'll be more specific—and I realise you weren't here when Minister Watt provided his answer to my previous question. Senator Watt said the Australian Human Rights Commission had proposed a cost model on the basis of section 570 of the Fair Work Act. But isn't it the case the Australian Human Rights Commission actually proposed a cost model which was different from section 570 of the Fair Work Act? And let's bear in mind this is the Australian Human Rights Commission, who deals with these matters on a day-to-day basis. The Australian Human Rights Commission, in its submission to the commission inquiry, actually proposed a cost model different to that proposed in this act—namely, that courts should take into account a range of specified and numerated matters and the interests of justice and any other matters which the court considers relevant. Isn't it the case that this act is a departure from the cost model proposed by the Australian Human Rights Commission, who is at the coalface of dealing with discrimination matters and sexual harassment matters in this country?</p> <p class="speaker">Don Farrell</p><p>My understanding, Senator Scarr—and you're right: I wasn't present when the previous comments were made—is that Minister Watt has accurately explained the current position of the Human Rights Commission.</p> <p class="speaker">Paul Scarr</p><p>No.</p> <p class="speaker">Don Farrell</p><p>Well, that's my understanding. And their current position is the position that we're adopting. Just to be clear about that, the answer I just gave you is, I think, the correct answer. The bill does differ in the way I've expressed it, but it's based on the recommendations from the Australian Human Rights Commission's <i>Free and </i><i>e</i><i>qual</i>report.</p> <p class="speaker">Paul Scarr</p><p>Sorry, Minister, I'm going to have to belabour this point because this is an important point. This is the peak human rights body in this country, which deals with discrimination matters on a day-to-day basis. Isn't it the case that the Australian Human Rights Commission proposed a cost model which was materially different from the cost model proposed in this bill, insofar as it was a cost model under which a whole list of enumerated matters were to be considered by the court and the court was also to consider the interests of justice and any other relevant matters, and then the court would have the discretion in relation to decisions with respect to the award of costs? The Australian Human Rights Commission, on that basis, raised some serious concerns in relation to the sections of this bill, the application of this bill, the cost model, which is an Australia-first, as it would be applied in this bill, particularly in the context of small businesses, charitable organisations and other organisations which don't have the resources that the big end of town have, that the ASX 100 have. They don't have teams of lawyers and general counsel. The Australian Human Rights Commission raised serious concerns in relation to this cost model and proposed a cost model which is different from that contained in the bill. If that is the case, why is the government proposing a cost model in relation to discrimination matters which is different from that proposed by the Australian Human Rights Commission, which deals with these matters on a day-to-day basis? Doesn't that raise any red flags? Doesn't that raise any concerns?</p> <p class="speaker">Don Farrell</p><p>Not for me, Senator Scarr. I think you're nitpicking a little bit here. We believe that what we are doing here is consistent with the sentiments expressed by the Australian Human Rights Commission.</p><p>I can remember, when I first started working as a lawyer for the Shop Assistants Union in 1976, getting into a situation where, if you had a dispute before the industrial relations tribunal, then it was always accepted in those circumstances that each side met their own costs.</p><p>Now, you refer to the situation of small businesses. That's not an unfamiliar position for many of the people who will be taking these applications on the employee side. They often don't have access to the legal representation that you describe as coming from 'the big end of town'. I think this is a fair and just application of the costs issue in these sorts of situations.</p><p>In my view, having come to this issue relatively recently—like in the last 20 minutes—this is an absolutely fair application of rules that would generally apply in industrial relations situations. Now, I don't know whether South Australia was ahead of its time back then in the way—</p> <p class="speaker">Ross Cadell</p><p>They weren't!</p> <p class="speaker">Don Farrell</p><p>Always! Did you say 'always', Senator Cadell? I'm not sure if South Australia was ahead of its time back then, but I think that's a fairer way to approach these issues. I think we are, by and large, compliant with what the Human Rights Commission is suggesting. I think this piece of legislation is a fair way of treating these issues on both sides.</p> <p class="speaker">David Pocock</p><p>I move amendment (1) on sheet 2566:</p><p class="italic">(1) Page 2 (after line 12), after clause 3, insert:</p><p class="italic">4 Review of operation of amendments</p><p class="italic">(1) The Minister must cause an independent review to be undertaken of the operation of the amendments made by this Act.</p><p class="italic">(2) The review must commence no later than 2 years after the day on which this Act receives the Royal Assent.</p><p class="italic">(3) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.</p><p class="italic">(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.</p><p>Minister, throughout the committee inquiry process concerns were raised by the Australian Human Rights Commission. Senator Scarr has canvassed many of them in this debate. But it's not just them. There are many others with unintended consequences that could flow from this bill. Many of those were highlighted very eloquently by Senator Scarr in his dissenting report.</p><p>The bill proposes a significant change. I note that it is welcomed by many, but it is not in line with what Kate Jenkins and the Australian Human Rights Commission recommended around a hard-cost neutrality model. The impacts of these changes deserve proper consideration. Will the government support an independent review of the operation of amendments in this bill?</p> <p class="speaker">Don Farrell</p><p>I thank Senator Pocock for his question and for the advance notice that he was able to give us of that question. We very much appreciate your engagement with this bill, but, unfortunately, the government does not agree that a statutory review of this bill is necessary and it will not be supporting the amendment.</p><p>The nature of our court system is that the new cost regime, once it is in place, will be under constant scrutiny and review. If there are unintended consequences or problems, that will become clear through jurisprudence. The Attorney-General's Department will also be monitoring the operation of the new costs regime as a matter of course; however, the Attorney-General is willing to give an undertaking that a review of the operation of the new costs regime will be undertaken three years after its commencement, with a focus on any unintended consequences. The Attorney-General will write to you, Senator Pocock, to affirm this undertaking.</p> <p class="speaker">Paul Scarr</p><p>Can I just say this should be a no-brainer? It should be an absolute no-brainer to embed in this legislation a review mechanism, as proposed by Senator Pocock in good faith, so that, if these concerns come to fruition or don't come to fruition, there's an opportunity to have an independent review of the operation of this cost regime to see what the evidence is after this cost regime has been in place for a period of time. The concept of an independent review of the operation of legislation which has been the subject of submissions with numerous stakeholders—in this case, from the Australian Human Rights Commission to small business organisations et cetera—that have raised concerns, should be a no-brainer. It's not controversial. It's one thing for the minister to give an undertaking, but it should actually be in the bill. It shouldn't be dependent upon the actual minister. It should be in the bill, as we include reviews of all sorts of legislation in this place when stakeholders with great credibility have raised concerns about unintended consequences.</p><p>I see absolutely no reason why the government couldn't in good faith agree to the introduction of an independent review mechanism in this bill—a review, as Senator Pocock is proposing, to commence no later than two years after the date on which this bill receives royal assent. The operation of this cost regime would have two years, and the persons who conducted the review must give the minister a written report of the review within six months of the commencement of the review. Then that independent review needs to be tabled in this place so all of the senators from all the different parties have an opportunity to review and consider that independent review and the evidence generated by that review process, make comments and consider whether or not this was the right path or there needs to be tweaks. This is a very reasonable amendment, and the coalition certainly supports it.</p> <p class="speaker">Andrew McLachlan</p><p>The question before the committee is that the amendment moved by Senator David Pocock on sheet 2566 be agreed to.</p><p></p><p></p> -
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