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

I rise today to support the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. This bill amends the Australian Human Rights Commission Act to include costs protection provisions that will apply to unlawful discrimination proceedings commenced in federal courts.

The landmark 2020 Jenkins report found that workplace sexual harassment is prevalent and pervasive. In response to the recommendations made in that report, the government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. Schedule 5 of that bill proposed a cost neutrality approach, sometimes referred to as a 'soft costs' neutrality model. This approach requires that litigants bear their own costs in a case unless the court considers it just to order otherwise. It was felt initially by the government that this balanced the need for certainty and the clear impacts that costs can have on applicants taking action in the courts against the unintended consequences of cost reform, such as impacting access to legal representation.

At the time, though, the Legal and Constitutional Affairs Legislation Committee noted that there were differences in opinion about these cost provisions settings. Cost neutrality models carry certain risks which may well decrease a victim-survivor's willingness to progress a claim. The harm suffered by victims-survivors is recognised through the courts, primarily through compensation awards which, for sexual harassment and discrimination matters, have remained persistently low. Because the overall cost of proceedings is often exacerbated by the delay tactics adopted by well-resourced respondents and, typically, end up exceeding the assessed damages, cost neutrality models risk limiting access to justice significantly for people who have been discriminated against or harassed. Despite these concerns, the Legal and Constitutional Affairs Legislation Committee did recommend the soft costs neutrality model in the previous iteration of this bill. At that time, I sought to amend the cost provisions model.

Recommendation 25 of the Jenkins report set out the absolutely paramount need to ensure that fear of adverse cost orders did not prevent victims-survivors of workplace sexual harassment from seeking access to justice. I was of the view then—and I believe now—that victims-survivors of workplace sexual harassment should be able to speak out and to receive justice without fear regarding adverse cost orders. Clearly, these can act as a strong disincentive to people who wish to consider pursuing sexual harassment matters in court. So last year I proposed an amendment in the House of Representatives, giving an alternative to that cost neutrality approach. The amendment proposed an equal access, or asymmetric, approach. Under this approach, each party bears its own costs, except when the applicant is successful. Where the applicant is successful—that is, where the court has found that the respondent has engaged in discriminatory conduct—then the respondent will be liable to pay the applicant's costs, as they should.

This equal access cost model has a number of advantages. Firstly, it ensures that applicants are not dissuaded from bringing claims because of this fear of having to bear their opponents costs, should they not succeed. Secondly, it provides protection for respondents from vexatious claims, unreasonable acts or omissions. In such instances, applicants, reasonably, will be forced to bear the cost of their actions. Thirdly, this model allows for costs to be awarded against a respondent when an applicant's case is successful. And, finally, it avoids the unintended consequence of discouraging claims being brought both in class actions and individual proceedings where the amount of an award will be diminished significantly by the costs incurred in prosecuting the case.

Adoption of this asymmetric model of costs provision mirrors that already in place domestically for whistleblowers via the Public Interest Disclosure Act 2013 and the Corporations Act 2001. In introducing this change to the usual cost rule for those laws, the parliament recognised that legal costs could be prohibitive to any person seeking compensation for damage, and that the risk of being ordered to pay the costs of other parties to proceedings could well deter whistleblowers from bringing matters to court. I would argue that complainants who litigate sexual harassment and discrimination cases are also acting in the public interest. They are also seeking to assert their rights, the preservation of which benefits us all. This case was well made in the study Damages and costs in sexual harassment litigation last year.

It's also important to note that the equal access cost model can remediate, at least to some extent, the differentials in financial resources and power which might otherwise be apparent between victim-survivors and respondents. The power differential, in particular, is very often present in claims brought pursuant to the Sex Discrimination Act 1984 and other discrimination claims. The equal access model has obvious advantages in improving access to justice for victim-survivors, practically speaking, in levelling the playing field for legal action.

My argument remains: you should not be excused for bearing costs when you have broken the law. This bill will act as an incentive to change workplace cultures that permit discriminatory treatment. This should apply not only to sexual discrimination cases but to other cases or instances of discrimination on the basis of race, of age, of physical capacity—in other words, other human rights cases. People and organisations found to have engaged in discrimination or harassment in breach of the law should have to pay the legal costs of the applicants seeking to hold them to account for their actions.

The amendment I proposed last year in this place was not passed because it wasn't, at that time, supported by the Albanese government. Representatives of the Australian Greens and the Jacqui Lambie Network intended, at one point, to introduce similar provisions to mine in the Senate, but ultimately they did not need to. Under sustained pressure from the crossbench, the government chose to remove the cost provisions from this bill and to allow further consideration of this most important issue.

In one submission to that review, the Law Council of Australia noted:

… The 'cost neutrality' model (in any form) is no longer supported by a majority of practitioners in most jurisdictions.

It also commented:

The Law Institute of Victoria … submits that its members report that, given the costs of litigation, it is mainly high value claims or strategically litigated pro bono claims that are brought.

It considered:

… an equal access model would encourage more discrimination matters … in the public interest and would empower applicants from marginalised communities, vulnerable backgrounds and those with 'low value' claims.

I thank the government for demonstrating an ability to pause and to listen to the voices of experts. These are important matters which affect the ability of our government to protect the vulnerable and to ensure access to justice for women subjected to sexual harassment in the workplace.

When I was elected to this place last year, I pledged at that time to take action to address gender inequity and to protect women in the workplace, and I am proud that this bill has come back to this House in this form. I hope that it proceeds successfully through both this and the other place, and I commend the bill to the House.

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