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

by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Schedule 5, item 3, page 26 (line 12) to page 27 (line 13), omit section 46PSA, substitute:

46PSA Costs

(1) In proceedings under this Division against a respondent to a terminated complaint, an applicant in the proceedings may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (3).

(2) The court may not make an award of costs against an applicant who conducts the proceedings in a reasonable manner, in respect of any costs which relate to:

(a) the complaint; or

(b) any appeal in respect of the complaint.

(3) The applicant may be ordered to pay:

(a) all, or part of, the costs referred to in subsection (2) if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or

(b) so much of another party's costs that the court is satisfied were incurred as a result of conduct by the applicant in the course of the proceedings which the court determines to be unreasonable.

(2) Schedule 5, item 6, page 27 (lines 24 and 25), omit "if the Court considers that there are circumstances that justify it in doing so", substitute "in certain circumstances".

(3) Schedule 5, item 9, page 28 (lines 8 and 9), omit "if the Court considers that there are circumstances that justify it in doing so", substitute "in certain circumstances".

I'm grateful for the opportunity to submit these proposed amendments to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The landmark 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. This bill is an important and historic landmark on our path to a fairer, more equitable and safer workplace for all Australians.

I applaud the Albanese government for committing to preventing and addressing the consequences of workplace sexual harassment and other forms of discrimination. I also welcome the Attorney-General's comments this morning—that this is just the beginning of a conversation on these matters—and I agree with him that reasonable minds may well differ on their execution. I remain of the belief, however, that the issue of costs provision, as managed in this bill, is problematic, and it's this which is addressed by the proposed amendments.

Recommendation 25 of the Respect@Work report clearly articulates the need to ensure that fear of adverse costs orders 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 must ensure that employers understand their responsibility to protect their workplace and their workforce, and the ramifications of not doing so. The risk of adverse costs orders is clearly a disincentive to applicants considering pursuing sexual harassment matters in the Federal Court.

The Respect@Work report proposed that costs might be ordered against the applicant only where the court was satisfied that the party instituted the proceedings vexatiously or without cause. That model has not been adopted in this bill. Instead, this bill proposes a cost-neutrality approach in which litigants bear their own costs unless the court orders otherwise. The bill does set out various factors that the court must have regard to in making costs orders. Superficially, the cost-neutral arrangement represents an improvement on the status quo. In effect, however, its design and the uncertainty around its operation will serve to undermine access to justice by limiting the ability of applicants to secure legal representation. Taking a cost-neutrality approach to a relationship characterised by systemic inequality only serves to entrench that inequality.

The amendment I have proposed offers an alternative: an equal-access approach. Under this proposal, each party will bear its own costs, except when the applicant is unsuccessful—that is, when the court has found that the respondent has engaged in discriminatory conduct, in which case the respondent will be liable to pay the applicant's costs, as they should. You should not be excused from bearing costs when you have broken the law. 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 applicant. This will act as an incentive to change workplace cultures that permit discriminatory treatment. This should apply not only to sex discrimination cases but also to cases or instances of discrimination on the basis of race, age or physical capacity.

As the government knows, an equal-access model has already been adopted domestically for whistleblowers. In introducing this change to the usual costs rule, the parliament recognised that, at that time:

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.

This reform will increase access to justice. People who've experienced harassment and discrimination will be able to take their cases to court, and discriminatory behaviour will be appropriately penalised. There will be a flow-on impact to workplace culture. Each of the seven recommendations being implemented through this bill is important and long overdue. Combined, they will fundamentally change how acceptance and respect are perceived in our workplace. But I urge the government to accept this proposed amendment to improve the path to representation in the Federal Court.

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