News

7 December 2023

I welcome the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. It aims to address recommendation 25 of the Respect@Work report and does so with some changes, which I welcome. That's because, when I looked at that recommendation in the Respect@Work report, and from my former life as a barrister, where the recommendation went sat a little uneasily with me in terms of changes from the usual cost orders. So I do welcome the approach the government has taken.

The recommendations from the Respect@Work report was to insert a cost provision into the Australian Human Rights Commission Act to provide that a party to proceedings may only be ordered to pay the other party's costs in limited circumstances. I agree with that in principle. The issue of cost protection is one that has exercised my mind for some time now. I spoke about this issue last year when the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill was introduced. I was pleased to support that bill, which also included cost neutrality provisions to provide much-needed security to employees bringing a complaint of sexual harassment. Having come from the Family Court system and the family law system, with the norm being cost neutrality, I know it's an important aspect that can sometimes be difficult, depending on how parties conduct themselves in proceedings. So I'm pleased to see the government continue to seek methods for giving much-needed security and safety to applicants who may otherwise be reluctant to bring forward claims, for fear of being left with a burden of oppressive costs if their claims are ultimately not successful. It is expensive to bring on litigation, and, if unsuccessful, a claimant would in the ordinary course face bankruptcy and complete ruin for having had the courage to bring on their claim.

The intention behind the changes this bill puts forward is to remove the risk to victims and survivors, who may, by seeking redress, open themselves up to the risk of having to pay the other party's cost should they be unsuccessful in their claim. It doesn't take much imagination to see how this would deter a vulnerable person from making a claim of sexual harassment or other form of discrimination in their workplace if there's the risk of having to pay the legal costs of your perceived attacker, or worse—for example, a large organisation with very deep pockets. The many and varied manifestations of sexual harassment and other forms of discrimination have fortunately become more widely discussed and reported on in recent times, particularly since the emergence of the Me Too movement. The previously underreported and debilitating effects of such behaviour have now entered the public consciousness to a degree that enables informed public dialogue and understanding, and this must continue.

Disproportionately, victims are women or people forming part of the LGBTQI+ community or from minority ethnic groups. Their experience of society and, in particular, of the workforce is such that they are significantly more likely to feel marginalised, disempowered and not visible to or recognised or understood by others, making it all the more difficult to bring on allegations and claims. Therefore, although it's not always the case, it is far more likely that they perceive the justice system as being unable to understand the nuances of the very personal and traumatic circumstances which they have experienced and which may have led to the physical, financial and psychological trauma they have suffered. I've not even started to talk about the unpredictable influence of the often self-interested, headline-seeking media, and we have seen that at its worst in recent times.

How does this work in practice right now? Potential claimants will be told by their lawyer that while a judge always has a discretion to make a customised legal cost order—to reflect what the judge considers to be fair in all circumstances—by far the most common situation is that costs will follow the event. In fact, it's the default position. This means that, when the applicant makes out their claim and wins, the respondent will pay the applicant's legal costs. Conversely, however, if the applicant fails to make out their case against the respondent, the applicant could be ordered to pay the respondent's legal cost. When an applicant is taking on, for example, a claim against a large corporation in relation to a workplace issue and discrimination, that is incredibly daunting and can lead to bankruptcy and complete ruin.

There are many reasons why this might be a logical starting position in commercial disputes, and it is the norm that, if you bring on a case and you fail to make out the case, cost provisions should follow that course. However, for a psychologically affected and vulnerable victim or survivor of sexual harassment or other discriminatory behaviour in the workplace, they are already steeling themselves against an extended period of public scrutiny and testing through the adversarial court system. We have certainly seen this with recent allegations and events in this place. This may be one bridge too far, leading them to abandon the attempt to seek legal redress. That means we all pay a price, because the system and workplaces do not become safer and better.

This was recognised by the Respect@Work report, which recommended introducing a cost protection provision. The provision proposed by the government, however, differs in a few aspects, and I must say I do support the differences the government has introduced. Firstly, under this bill, an applicant can only be ordered to pay the respondent's cost if the respondent is successful in the proceedings, so the applicant has failed to make out their case. Secondly, it can only occur if the respondent doesn't have substantial financial resources compared to the applicant. In my mind, this really covers where you have a smaller workplace, or you have an individual where you don't have an incredible difference in means between the two parties to proceedings. Obviously, for smaller businesses, if they are subject to a discrimination or a sexual harassment claim in their workplace, that can also be debilitating. So it's incredibly important we find a fair result in relation to this, a system that encourages and facilitates victims to bring forward the complaint but not a system that will disproportionately impact respondents as well.

Thirdly, an applicant can only be ordered to pay the respondent's costs if the respondent doesn't have a significant power advantage over the applicant. That is clear when we're talking businesses and workplaces, so between an individual applicant and a workplace with many more resources available to them.

These criteria are sensible and are probably fairly easy to establish before the court, whether the respondent was successful in the proceedings and what the respondent's financial situation is. I'm concerned that establishing the third criterion might be difficult in terms of whether or not there is a significant power advantage. That won't be an easy task, so I think it will be important to monitor how this legislation progresses in practice and to review it, if necessary, to ensure that it is striking the right balance in assisting victims being able to bring their case forward without that fear of cost but also that we don't have a detrimental and unfair system resulting.

I thank the government, and I welcome this bill with these amendments and implementation of the Respect@Work recommendations. It's incredibly important that we continue to progress healthy, respectful and safe workplaces. The most important thing is that, as members in this place, we have a duty to keep emphasising this. As a member of the Parliamentary Leadership Taskforce tasked to implement the Set the standard report recommendations in relation to the Commonwealth and parliamentary workplaces, I certainly welcome these provisions and urge all members to continue engaging with PWSS and the resources available to us as employers to ensure safe workplaces.