Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 represents the final legislative reform required to fulfil the Albanese government's commitment to implement the recommendations of the Respect@Work report.

The landmark Respect@Work report made 55 recommendations to federal, state and territory governments, the private sector and the community more broadly, all driven by the same impetus: to put an end to sexual harassment and to make Australian workplaces safe for all.

The fifth national survey on sexual harassment in Australian workplaces found that 33 per cent of people who had been in the workforce in the preceding five years had experienced workplace sexual harassment. Sexual harassment is a serious and pervasive issue, which demands a fundamental rethink in how our laws are shaped to prevent, protect and support individuals who experience sexual harassment.

Research shows us that for victim-survivors, the risk of an adverse order for costs is a significant barrier to accessing justice in federal unlawful discrimination court proceedings. Victim-survivors should not be deterred from commencing or running legal proceedings by the risk of an adverse cost order.

Costs protections

The bill would insert a modified 'equal access' costs protection provision into the Australian Human Rights Commission Act. This would achieve the policy objective of recommendation 25 of the Respect@Work report. This new model would apply to all complaints taken to court under Commonwealth antidiscrimination law, reflecting the public interest in holding people to account for discrimination and harassment. The new model would also apply to representative actions.

The Respect@Work report considered that cost reform was required to overcome the deterrent effect that an adverse costs order poses to applicants seeking to commence unlawful discrimination proceedings, and to provide sufficient certainty to parties as to how costs would be awarded. The prospect of an adverse cost order can also magnify existing financial and power disparities between an individual applicant and certain respondents, such as large corporations or well-resourced individuals.

While the government previously sought to introduce a 'soft cost neutrality' model, consistent with the Australian Human Rights Commission's position in its 2021 Free and equal position paper, victim-survivor advocates, community legal centres, members of the legal profession and unions raised concerns with this approach.

After careful consideration and close and comprehensive consultation with a range of organisations and individuals, the government considers that a modifiedequal access model would best achieve the policy objectives of recommendation 25 of the Respect@Work report.

This bill would ensure that where an applicant is successful in proceedings on one or more grounds, the respondent would pay the applicant's costs. This would operate to protect applicants from an adverse costs order where they are successful in a case. However, if the applicant's unreasonable act or omission caused the applicant to incur costs, the court would not be required to order the respondent to pay those costs.

This bill would prevent a court from ordering an applicant to pay the respondent's costs except in certain circumstances. These circumstances include where the applicant has commenced the proceedings vexatiously or without reasonable cause, or the applicant's unreasonable act or omission caused the other party to incur costs. In addition to this, the court would be able to order that the applicant pay the respondent's costs where the respondent has been successful in the proceedings (meaning all claims against them have been dismissed), the respondent does not have a significant power advantage over the applicant and the respondent does not have significant financial or other resources relative to the applicant.

Significantly, this modified equal access model addresses the power imbalances and resource disparities present in most unlawful discrimination proceedings. At the same time, the modifications to the equal access model recognise that not all respondents in unlawful discrimination proceedings are well-resourced or at a power advantage over the applicant, such as some individuals or small businesses.

Conclusion

The Respect@Work report represents a major shift in how public policy and the legislative framework support people who experience sexual harassment and discrimination. The modified equal access cost provision in this bill reflects a considered and balanced approach, which best achieves the policy objectives of recommendation 25 of the Respect@Work report.

This bill would strengthen Australia's antidiscrimination framework and help achieve its core objective of eliminating all forms of discrimination.

I conclude by thanking the many individuals and organisations, including unions, business groups and legal experts that have engaged with the Attorney-General's Department in the development of this important reform.

I commend the bill to the House.

Debate adjourned.