Anne Stanley (Werriwa, Australian Labor Party) Share this | Hansard source

It's not by accident that many of our courts—and I'm thinking especially here of our higher courts—have Lady Justice at their entrance. She's depicted with scales in one hand, symbolising justice and the balance between the act and the consequence. She's also depicted blindfolded to represent impartiality—that is, justice should be applied without regard to wealth, power or status. Her presence is a powerful and tangible reminder that we are all meant to be equal under the law. Equal access to court and court proceedings is a fundamental right of our democracy.

A favourite movie for most Australians is The Castle. With a typical Australian laconic sense of humour, it tells the story of a little guy taking on the big end of town. After all, 'it's not a house, it's a home.' In the movie, Darryl is fortunate to meet up with Lawrence Hammill QC, who, pro bono, takes up Darryl's case, and the rest is history. It's great entertainment, but it is just that: entertainment. Not everyone is as fortunate to get a mate like Lawrence, for, as much as we'd like to think we could have equal access to court proceedings, the truth is that most people can't. Lawyers, barristers and Queen's and King's counsels are expensive—often prohibitively so. Sadly, my electorate office is reminded of this every week when we refer constituents to Macarthur Legal Centre and other community legal centres in our area.

The other prohibitive factor regarding instituting legal proceedings relates to the matter of costs. Sometimes legal proceedings are a matter of David versus Goliath—that is, the respondent is well resourced, and there is a significant power disparity between the respondent and the applicant. Such a disparity and imbalance can have the effect of deterring applicants from initiating legal proceedings because they are fearful that, if they do lose, they will face huge and often crippling costs against them.

The Albanese government is committed to implementing all of the recommendations of the Respect@Work report. The report was released in March 2020 by the Human Rights Commission and made 55 recommendations directed at all levels of government and the private sector for policy and legislative reforms to prevent and address workplace sexual harassment. Recommendation 25 of the Respect@Work report recommends that a cost protection be enacted to guide a court in awarding costs between parties in discrimination proceedings. Recommendation 25 is the final one that requires Commonwealth legislative reform. The objective of the recommendation is clear. It aims to overcome the significant deterrent that the risk of adverse orders poses for applicants in such proceedings.

The Respect@Work inquiry heard that the risk of adverse costs acts as a deterrent to applicants from considering pursuing their sexual harassment matters in federal court. The general practice means that, currently, applicants may be liable for their own costs as well as that of the other party if they're unsuccessful. This then creates an access-to-justice concern, particularly for vulnerable members of our community.

The bill would amend the Australian Human Rights Commission Act 1986 to insert a modified 'equal access' cost provision, which would apply consistently across federal anti-discrimination laws. This reform will alleviate the significant barrier to justice and the risk that adverse costs orders currently pose for applicants in federal unlawful-discrimination court proceedings and provide greater certainty to parties involved in such proceedings. The bill would prevent courts from ordering an applicant to pay the respondent's costs, except in certain circumstances. If an applicant is unsuccessful on all grounds, parties would generally bear their own costs. Further:

The particular circumstances where the court may order that an applicant pay another party's costs are where it is satisfied that:

Further, if the applicant is successful on one or more grounds, the court must order that the respondent pay the applicant's costs. The proviso here, though, is that, if the court is satisfied that the applicant's unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission.

The equal access model in this bill addresses the power and resources imbalances that are present in most unlawful-discrimination proceedings, but it has been modified to recognise that not all respondents in these matters are large corporations or well-resourced individuals—that is, the modified equal access model gets the balance right and strikes the appropriate balance between alleviating barriers to accessing justice for victims-survivors and the burden on respondents, while not impacting the applicant's access to legal representation.

The Castle was a great movie. Justice was done and Darryl got to keep his castle. But the law of sexual discrimination is not The Castle and it's not entertainment. It is a scourge, and it needs to be eliminated. It also needs its day in court. It is vital we empower applicants to bring forward matters to our courts. I'm pleased to speak on the bill and commend the bill to the House.

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