Monique Ryan (Kooyong, Independent) Share this | Hansard source

I thank the House for the opportunity to speak to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The purpose of this legislation is to address sexual harassment in Australian workplaces by implementing the recommendations of the Respect@Worksexual harassmentnational inquiry report 2020, the Jenkins report. The Jenkins report found that workplace sexual harassment is prevalent and pervasive. It occurs in every industry, in every location and at every level in Australian workplaces. As Kate Jenkins herself has said, the right of workers to be free from sexual harassment is a human right, workplace right and a safety right. Hence, Ms Jenkins's recommendation that work related gendered violence and workplace sexual harassment be treated as an occupational health and safety issue.

I congratulate the government on its commitment to rapid and effective action on the recommendations of the Respect@Work report. However, there is an issue of particular concern. Recommendation 25 of the Respect@Work report clearly articulates the need to ensure that fear of an adverse court order does not create a barrier to victims-survivors of workplace sexual harassment seeking access to justice. In passing this important legislation, we have to make it easier for victims of workplace sexual harassment to speak out and to receive justice. We have to ensure that employers understand their responsibility to protect their workforce and the ramifications of not doing so. The risk of adverse court orders acts as a disincentive to applicants considering pursuing their sexual harassment matters in the federal courts. The Jenkins report noted that the current practice in which costs follow the event means that applicants may be liable for the costs of both parties if they are unsuccessful. This may deter applicants from initiating court proceedings and it can present an access to justice concern, especially for vulnerable members of the community.

The Respect@Work report proposed a model based on section 570 of the Fair Work Act providing that costs may only be ordered against a party if the court is satisfied that the party instituted the proceedings vexatiously or without cause, or if the court is satisfied that a party's unreasonable act or omission caused the other party to incur costs. That model has not been adopted by this bill. Instead, this bill proposes a cost neutrality approach. The proposed cost neutrality provision in this bill provides that, as a default position, each party bears their own costs in an unlawful discrimination proceeding. The courts do retain discretion to depart from this default position and to make cost orders where they consider it just. In considering whether to depart from the default position the courts have to have regard to a number of factors, including the financial circumstances of the parties to the proceedings and whether any party to the proceedings has been wholly unsuccessful.

We do need cost reforms to give both applicants and respondents greater certainty in terms of the costs that they could face, while not impacting their access to legal representation. People need to know what they're committing to before making important legal decisions. However, the model proposed by the government in this bill, this cost neutrality approach, will likely have an opposite effect to that intended.

Under this model, employers found to have breached the Sex Discrimination Act will not have to pay the legal costs of the victim-survivor. Even if a victim-survivor is successful in a claim, they will have to pay their own costs. If the victim-survivor is awarded compensation—we know that damages for sexual harassment cases are traditionally quite low—this compensation may be insufficient to cover their legal costs. So a victim-survivor shown to have been wrongfully treated in the workplace could end up out of pocket for seeking recognition of that fact. They could end up in a worse financial position than they were in before they brought the claim, especially if the defendant drags out proceedings, increasing costs beyond the means of the applicant. Defendants who want to punish and wear down a woman complainant can do so. They can drag the proceedings out in the knowledge that the woman's legal expenses will increase, that she will have to meet them herself and that those costs will end up chewing up all of her compensation or most of her compensation. This not only means an unfair reduction in the compensation outcome but will also increase the trauma of those proceedings for the applicant. We know this may well occur. After all, corporations can claim tax deductions for their legal costs while victims-survivors cannot. It's inappropriate. This is wrong and it needs to be changed.

The proposed cost neutrality approach could well limit the ability of applicants to secure legal representation, because it removes the certainties for solicitors and barristers that they will recoup their fees. Even if the matter is successful, it will render it more difficult for victims-survivors to secure representation. If they engage no win no fee or other private legal services, even if they're successful in their claim, they could still be required to bear their own legal costs under the cost neutrality approach.

Legal assistance services rarely take sexual harassment cases to hearings due to resource constraints. Applicants will often have to secure private solicitors or face pressure to settle the matter prior to hearings for amounts lower than they would otherwise be entitled to. This dynamic creates a significant disparity in justice between those who have access to the means to pay for private representation and those who do not. It creates a divide between the better off and those who are less well off, hardly what we want to achieve from this important piece of legislation. We need to remove, not add to, the financial barriers for victim-survivors from marginalised communities—migrant women, First Nations women and women from the LGBTQI community—seeking justice for acts of workplace harassment and discrimination. Less financially secure applicants may well end up depending on pro bono lawyers and barristers because otherwise they'll have to cover their own costs. While under the proposed legislation the Federal Court has the discretion to make cost orders, we know that without the certainty that this will occur applicants may well be unable to secure representation.

The cost-neutrality approach will not adequately reduce the financial uncertainty faced by applicants seeking to bring sexual harassment matters to court. The mechanism proposed in this bill provides, in effect, equal protection to perpetrators and victim-survivors in circumstances where there is a vast asymmetry of power and economic advantage. The cost-neutrality approach may well act as a barrier to accessing justice for victim-survivors of harassment and discrimination. Taking a cost-neutrality approach to a relationship—

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This cost-neutrality approach will not reduce adequately the financial uncertainty faced by applicants seeking to bring sexual harassment and sex discrimination matters to court. The mechanism proposed in the bill provides, in effect, equal protection to perpetrators and to victims-survivors in circumstances where there is a vast asymmetry of power and economic advantage. The cost-neutrality approach may act as a barrier to accessing justice for victims-survivors of harassment and discrimination. Taking a cost-neutrality approach to a relationship characterised by endemic inequality only serves to entrench that inequality.

The amendment I'm proposing to this bill offers an alternative: an equal-access approach. Under this proposal, respondents would be precluded from recovering costs against an unsuccessful claimant. Each party would bear their own costs, except where an applicant was successful—that is, where the court had found that the respondent had engaged in discriminatory conduct in breach of the Sex Discrimination Act—in which case the respondent would be liable to pay the applicant's court costs, as they should be. You should not be excused from costs when you have broken the law. People and organisations found to have engaged in sexual discrimination or harassment in breach of the law should have to pay the costs of the applicant. This will act as an incentive to change workplace cultures that permit discriminatory treatment.

This proposal will mean that victims-survivors in sexual discrimination matters can take meritorious cases to court with the confidence that, even if their case is unsuccessful, they won't be subject to an adverse cost order. The approach will ensure that victims-survivors can continue to secure solicitors and counsel willing to act on a no-win no-fee basis, as their legal team will be confident of recouping their costs if the case is successful.

Corporate respondents will be no worse off under this reform, as they're already able to claim legal costs as tax deductions. Yes, individual respondents would now be potentially liable for their own costs, even if they were successful, but it's worth noting that, in the nine years of Sex Discrimination Act cases in the Federal Court of Australia, between 2012 and 2021, most cases were brought against a corporate or government entity. Only 10 per cent of cases—seven cases in total—were brought against an individual. If this proposed reform were already in place, it would have amounted to no practical change in any cost orders made in favour of the successful respondents over the last nine years.

There are domestic and international precedents for the use of the equal-access model. An equal-access model has already been adopted domestically for whistleblowers under the Corporations Act 2001 and the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019. That provision requires that, where a claimant applies to the court for compensation for detrimental treatment as a result of whistleblowing activities, that claimant must not be ordered to pay the costs of another party unless the claimant has instituted those proceedings vexatiously. It doesn't exclude the respondent's ability or liability to pay the claimant's costs; that remains a matter for the court's discretion.

In introducing this change to the usual cost rule, parliament recognised:

Legal costs can be prohibitive to any person seeking compensation for damage, and the risk of being ordered to pay the costs of other parties to the proceedings may deter whistleblowers and other victims of victimisation from bringing the matter to court.

Legal costs can be prohibitive to any person seeking compensation for damage in sexual harassment cases, just as much as for whistleblowers.

South Africa uses this model. The UK has used this model. The US Supreme Court has long held that, in relation to employment discrimination claims, successful plaintiffs should be awarded costs and only subjected to adverse costs where their actions were frivolous, unreasonable or without foundation. It gives perfect sense to give those who expose sexually hostile and unsafe workplaces the same legal standing as whistleblowers. They deserve the same protections without constraints on their achievement of just outcomes.

The reform I propose will increase access to justice. People who've experienced sexual harassment and sex discrimination will be able to take their cases to court. Discriminatory behaviour will be appropriately penalised. There will be an important flow-on impact on workplace culture. Victims-survivors with meritorious claims will have more options to secure legal representation, because they'll know that if they're successful in their claim there is a guarantee that their lawyer's or barrister's costs will be paid by the other party. This model creates more equitable access to the courts by reducing financial barriers for victim-survivors from marginalised communities—migrant women, First Nations women and women from the LGBTQI community.

Each of the seven recommendations being implemented through this bill is important. All of them are long overdue. When combined, they will fundamentally change how safety, acceptance and respect are perceived in our workplaces and who is responsible for ensuring their presence and their value. I urge the government, though, to amend section 46 of this bill to protect victim-survivors, to support their right to representation and to remove the disincentive to pursuing sexual harassment matters in Federal Court.

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