Penny Wong

I move the motion as circulated:

That:

(a) the questions on all remaining stages of the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 be put immediately;

(b) paragraph (a) operate as a limitation of debate under standing order 142; and

(c) divisions may take place after 4.30 pm until consideration of the bill has concluded.

Sue Lines

The question is that the motion as moved by the minister be agreed to.

Sue Lines

The question is that the procedural motion be agreed to.

Penny Wong

I move:

That a motion relating to consideration of legislation may be moved immediately and determined without amendment or debate.

And I move:

That the question be now put.

Sue Lines

The question is that the question be put.

Sue Lines

The question now is that the suspension be agreed to.

Penny Wong

I seek leave to move a motion relating to consideration of legislation.

Leave not granted.

Pursuant to contingent notice of motion, I move:

That so much of the standing orders be suspended as would prevent me moving a motion to provide for the consideration of a matter, namely a motion to allow a motion relating to consideration of legislation to be moved and determined immediately.

I move:

That the question be now put.

Sue Lines

The question is that the question be put.

Sarah Hanson-Young

I'd ask that the question be put.

Hollie Hughes

The question is that the question be put.

A division having been called and the bells being rung—

David Pocock

I'm just seeking clarification: what is this division on?

The TEMPORARY CHAIR: Whether the question should be put.

Not on amendments?

The TEMPORARY CHAIR: No, just on—

Sarah Hanson-Young

If we need to cancel the division that's fine, but there was no-one moving their amendments.

The TEMPORARY CHAIR: For the ease of the chamber, we'll cancel the division.

Paul Scarr

Well, with that delightful guidance, I move opposition amendment on sheet 2384 in relation to costs:

(1) Schedule 1, item 3, page 3 (line 10) to page 4 (line 20), omit section 46PSA, substitute:

46PSA Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court in relation to a matter arising under section 46PO may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2).

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the Commission;

(ii) the matter arose from the same facts as the proceedings.

I will make a few comments in relation to it. This amendment would essentially implement what was recommended by Commissioner Jenkins in her report. We all have a great regard for former commissioner Jenkins in relation to this jurisdiction. Commissioner Jenkins actually proposed that the costs provision that should apply under this legislation should be similar to section 570 of the Fair Work Act. That's what Commissioner Jenkins proposed in relation to sexual harassment. Former commissioner Jenkins made a profound change in relation to the issue of sexual harassment and how it is viewed in the wider Australian community and how it is viewed in relation to this parliament, and that was Commissioner Jenkins's recommendation: that Section 570 of the Fair Work Act should apply with respect to costs in relation to this issue. And that is what this amendment proposes. It proposes that this bill incorporate the costs provisions that were proposed by former commissioner Kate Jenkins.

As I said, the Australian Human Rights Commission proposed something where the court could consider a whole range of issues in the interests of justice. The bill doesn't reflect that either. But we in the coalition have a great respect for former commissioner Jenkins. We believe that her recommendation on costs provisions should be applied and the provisions that are contained in section 570 of the Fair Work Act should be reflected in this legislation.

That would mean that, as a general proposition, each side would pay their own costs, as happens in relation to industrial relations matters. However, there would be a provision allowing the court to depart from that general approach, so that the court could consider the particular circumstances of the case and then decide that, in the particular circumstances of the case, one side or the other should actually bear costs. We think that is a fair and equal-sided approach to this issue.

We get great comfort from the fact that the former Sex Discrimination Commissioner, someone as eminent as former commissioner Kate Jenkins, proposed this approach. We think that it's the right approach. We are terribly concerned, and the Law Council of Australia has raised concerns, the Australian Human Rights Commission has raised concerns—a whole heap of stakeholders have raised concerns—that what the government is proposing at the moment is too one-sided. For example, it means someone could bring a discrimination claim against a small business or sole trader, and, simply because that sole trader or small business couldn't settle or resolve that matter—and we'd all like to see these matters resolved as quickly as possible—they could be taken to court. Say that small business were to win in court. On the basis of the proposition that the government is putting forward, that small business, unless it went through some impossible hurdles, could not get its costs from the applicant, even though it had succeeded in court. Does that sound fair? Aren't we all meant to be treated equally before the law? What's proposed in this bill would be absolutely the first time this sort of principle has been introduced in any such legislation across the whole of Australia. No other legislation and no other jurisdiction has a cost system like this.

I note Senator Waters's interjection that I'm wrong in that regard. Well, if I'm wrong, the Law Council of Australia is wrong.

Larissa Waters

No, it was the whistleblower laws. You should know that.

Paul Scarr

With due respect, Senator Waters—and I have a great respect for your interest in this matter—I do not believe that whistleblower provisions and whistleblower laws are an appropriate analog in this context.

Larissa Waters

You said there was no example, and I'm giving you an example.

Paul Scarr

Well, it's not an appropriate example. It's an incorrect example. Whistleblower laws are totally different from this jurisdiction, and I say that as someone who used to be responsible for whistleblower policy in an ASX listed company. They are totally different, and one of the differences is that those whistleblower laws apply to large corporates. That's one of the issues we have. There's a huge difference between Westpac Banking Corporation on one hand and a small cafe on the other, and it's totally unreasonable to impose this cost philosophy on a small business just as you would apply it to Westpac Banking Corporation, ANZ, BHP or Rio Tinto. It's just absurd.

I say to the government: when you're considering this amendment, consider the red flags raised by the Australian Human Rights Commission, a fiercely independent statutory body that is at the forefront of prosecuting the case for human rights across this country; think about the concerns and red flags raised by the Law Council of Australia, whose members deal with these cases on a day-to-day basis; and accept the advice of the extraordinarily eminent Australian Kate Jenkins, the former Sex Discrimination Commissioner, who proposed and recommended the model that is contained in this amendment. With that, I'm happy to support the amendment.

Anthony Chisholm

The government will not be supporting this amendment.

Andrew McLachlan

The question before the Senate is that the amendment standing in the name of the opposition on sheet 2384 be agreed to.

Hollie Hughes

The question is that the bill stand as printed. Senator Scarr.

Paul Scarr

I think Senator Hanson-Young was before me.

Sarah Hanson-Young

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.

Paul Scarr

I appreciate Senator Hanson-Young's expression of generosity. However, I have a number of questions.

Hollie Hughes

Senator Hanson-Young, Senator Scarr has the call.

Sarah Hanson-Young

No, he didn't actually—

The TEMPORARY CHAIR: He does have the call.

The TEMPORARY CHAIR: Senator Hanson-Young, Senator Scarr has the call.

Paul Scarr

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.

Don Farrell

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.

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.

Paul Scarr

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?

Don Farrell

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.

Paul Scarr

No.

Don Farrell

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 Free and _e__qual_report.

Paul Scarr

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?

Don Farrell

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.

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.

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.

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—

Ross Cadell

They weren't!

Don Farrell

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.

David Pocock

I move amendment (1) on sheet 2566:

(1) Page 2 (after line 12), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause an independent review to be undertaken of the operation of the amendments made by this Act.

(2) The review must commence no later than 2 years after the day on which this Act receives the Royal Assent.

(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.

(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.

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.

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?

Don Farrell

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.

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.

Paul Scarr

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.

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.

Andrew McLachlan

The question before the committee is that the amendment moved by Senator David Pocock on sheet 2566 be agreed to.

Lidia Thorpe

I move:

(1) That there be laid on the table by the Minster representing the Attorney-General statements which detail, by state and territory, the number of:

(a) deaths in custody, including breakdown by age groups and cause of death;

(b) ongoing coronial inquests;

(c) incidents of self-harm in custodial settings; and

(d) miscarriages and stillbirths in custodial settings.

(2) That the statements are due not later than the tenth day after the end of the preceding three-month period commencing 1 January, 1 April, 1 July, and 1 October.

(3) That this order is of continuing effect.

Katy Gallagher

I seek leave to make a short statement.

Sue Lines

Leave is granted for one minute.

Katy Gallagher

The government won't be supporting this motion. We accept that the rates of incarcerated First Nations people and deaths in custody are unacceptable. In 2023 the government established a national real-time death in custody dashboard available on the Australian Institute of Criminology website. The dashboard provides information on all deaths occurring in police and prison custody as well as in youth detention. This important transparency measure is already in place.

States and territories, not the Commonwealth, hold the information that Senator Thorpe is calling for in this motion. In addition, it is not a reasonable request nor is it possible for the Attorney-General to table information about ongoing coronial inquests. I urge the Senate to reject this motion.

Sue Lines

The question is that general business notice of motion No. 637 standing in the name of Senator Thorpe be agreed to.

Alex Antic

I move:

That there be laid on the table by the Minister representing the Minister for Communications, by no later than 3 pm on Friday, 27 September 2024, copies of all letters, briefing notes, meeting agendas, meeting invitations, meeting notes, emails and/or text messages between Nina Jankowicz (and/or her office) and the eSafety Commissioner, Julie Inman Grant, (and/or her office) for the period 1 January 2024 to 18 September 2024.

Sue Lines

The question is that general business notice of motion No. 632 standing in the name of Senator Antic be agreed to.

Jonathon Duniam

I move:

At the end of the motion, add:

"and, in respect of the provisions of the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024, the Environment and Communications Legislation Committee report by 3 February 2025".

Malcolm Roberts

We support this extension of the reporting of the inquiry into the misinformation and disinformation—

Sue Lines

Senator Roberts, I'm advised that time has expired, so I'm going to put the amendment. The question is that the amendment moved by Senator Duniam to Senator Gallagher's amendment to the Selection of Bills Committee report be agreed to.