Anne Stanley (Werriwa, Australian Labor Party) Share this | Link to 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.

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

It gives me great pleasure to speak on this bill, because it's something that's very close to my heart. The presumption of innocence until proven guilty is one of the cornerstones of our legal system for us as legislators in this House. I took with great confidence the comments from the previous speaker, the member for Werriwa, on the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 when she referenced a wonderful piece of our broadcasting history, the movie The Castle, which is about the protection of the family home that goes right through to the High Court—where not everyone can afford to have representation. He took pro bono legal representation from a retired constitutional barrister, if my memory serves me right.

Unfortunately, what I'm seeing at the moment, and where this piece of legislation is critical for the parliament, is more often at local government. We have situations where litigious acts are being brought against members of the public or co-members with absolutely no cost of recourse. In other words, one local government member may bring an action against another member for a slur or something sinister weeks or months before a by-election. You can look on the records throughout each of the states as to which councils are more litigious than others. If we had these cost protections in place to actually award some costs—at the moment the costs are all borne by third parties, such as local government, or there are no costs awarded—we would have a different level of motivation in bringing frivolous actions to the court.

It's an expensive act. Communities shouldn't have to pay for this. As I said in my opening comments, we all enjoy the idea of 'innocent until proven guilty', although that may not always be the case in this place when we have the fourth estate. There are many situations where we're seeing cases unfold at the moment—you only have to be prompted by the headlines of each major paper, where actions will be pulled out into the media.

Now that we have some speakers in the chamber, it has given me great pleasure to be able to make a contribution to a debate that I feel so strongly about. I don't know if I'm commending this bill to the House, but I will conclude my comments.

Kate Thwaites (Jagajaga, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for Wright for that contribution. I've spoken on several occasions in this place about the importance of safe workplaces across Australia: in this place for the staff who work here through right through to every workplace across our country. Everyone deserves to have a workplace that they are safe in and that is respectful. And if there is harassment or misconduct or other issues in that workplace, there need to be structures in place so that workers can raise their concerns if they wish to, and those concerns are addressed. This bill takes action on a crucial piece of this puzzle.

The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 will implement recommendation 25 of the Respect@Work report, which is the final remaining recommendation that requires Commonwealth legislative reform. That recommendation was straightforward:

Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act …

The report noted that the inclusion of a provision of this kind should ensure that costs may only be ordered against a party by the court if satisfied that the party instituted the proceedings vexatiously or without reasonable cause. In making this recommendation, the commission expressed its concerns about the negative impact on access to justice—particularly for vulnerable members of the community—that came from the current costs regime that's associated with pursuing sexual harassment matters. This is supported by parliamentary findings as well. The commission highlighted the work of a 2008 Senate inquiry that acknowledge concerns that people making complaints may be deterred from taking forward claims in the courts because of the risk that they would incur substantial costs for the respondent.

The background to this recommendation comes from the significant body of work that the commission did in preparing its report, including Kate Jenkins, the former Sex Discrimination Commissioner. Ms Jenkins's time at the AHRC has now concluded, but I think she is still following closely and knows that the reforms that this parliament has seen in the last couple of years are due, in most ways, to the great work she did as Sex Discrimination Commissioner. Her willingness to be ambitious in recommending these necessary and overdue reforms is commendable, and the lives of Australians across our country will be better for it. I am proud that this government has delivered on the recommendations from the Respect@Work report, turning that report and its recommendations into a reality and improving conditions for Australians.

This bill follows work that our government has undertaken from the start of our time in office to deliver on the recommendations of the Respect@Work report. Last year, in the early months of the government, we delivered the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill, which dealt with several matters that came from the Respect@Work report and its recommendations. I said at the time of that bill and I will say again: everyone deserves to feel safe and be safe in their workplace. It doesn't matter where in Australia you are, what kind of workplace you're in, the level of experience or seniority you have or how big your workplace is, you should be safe from harassment. There is no justification for harassment or other kinds of behaviour that have no place in Australian workplaces.

We know that too many Australians have experienced workplace harassment—one in three, based on findings from the AHRC. Forty per cent of those are women and 25 per cent are men. In debate on the respect at work bill last year, I spoke about the stories women had shared with me about their experiences of harassment in the workplace. I want to once again thank all those people who shared with me some very difficult stories and experiences and those people who shared their experiences with the AHRC. Your courage in doing that has helped to inform this work and this very important legislative change. To a large degree, these are happening because of the bravery you've shown.

One of the issues that have come up time and time again is the difficulty that workers have had in dealing with instances of harassment. The respect at work bill and this bill, together, aim to provide clarity on these issues to avoid more people feeling like they're lost or stuck in how they respond to workplace harassment. Of course it shouldn't happen, but when it does happen—let's be real—we need to have the right response mechanisms in place.

One of the barriers that people identified was the difficulty of the frameworks that were meant to support people but weren't doing that work. They are hard to navigate. They're complex. They're more focused on reacting to the situation than preventing it from occurring in the first place, and that extends to what this bill is trying to deal with—the issue of structures making it seem so much more difficult to get a resolution on an issue and, because it seems so difficult, people giving up without seeking that remedy or resolution. We don't want people who have experienced sexual harassment facing the prospect of needing to pay the costs of a respondent in that harassment claim. It is a disincentive to people taking claims forward. As this government has already done with previous legislation, we want to remove barriers that in the past have left people stuck, with no way forward, after having experienced sexual harassment in the workplace.

The respect at work report heard that the risk of adverse cost orders acts as a disincentive to applicants considering pursuing sexual harassment matters in the federal courts. In the current practice, costs generally follow the event, even while there is a broad judicial discretion to award cost in any matter as seen fit. That means that applicants may be liable for their own costs as well as those of the other party if they are unsuccessful. The risk of being ordered to pay the cost of other parties to the proceedings can deter victims-survivors of sexual harassment and other forms of discrimination from commencing legal proceedings, and, of course, there is often a power imbalance. Not always but often you have an individual going up against a large corporation with many more resources. So it does create access to justice concerns, particularly for more vulnerable members of our community and people without access to substantial resources. In response to this problem, the Respect@Work report recommended that a cost protection provision be inserted in the Australian Human Rights Commission Act to provide greater certainty for applicants.

I've spoken here before about parliament doing this work to improve how workplaces across the country operate as well as to improve how we here in the parliament operate. We must, in many ways, be a model workplace. We haven't always been in the past, and we're not there yet, but we are taking some steps to make this workplace a better place as well. That's why this government has worked to deliver legislative change for Commonwealth parliamentary workplaces to ensure workers here in parliament and in connected workplaces right around Australia have structures in place to prevent harassment and, importantly, to provide support to people when harassment does occur. I want to acknowledge the work of the presiding officers and the relevant ministers for the changes that have happened here. We are on the right track, I think, to become more of that model workplace that we should be and we should aspire to. We've done some of the work; There's more to be done, and I do look forward to continuing to work with colleagues to make that happen.

This bill would amend the Australian Human Rights Commission Act 1986 to insert a modified equal access cost protection provision, which would apply consistently across federal antidiscrimination laws. The reform will alleviate the significant barrier to justice that I've explained—that is, the risk of adverse costs being awarded disincentivising people from taking a claim forward. The bill will 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.

This bill picks up, as I said, on many of the recommendations from the Respect@Work report. The particular circumstances where the court may order that an applicant pay another party's costs are where it's satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause, or the applicant's unreasonable act or omission caused the other party to incur the costs, or where all of the following apply: the other party is a respondent who was successful in the proceedings, 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. If the applicant is successful on one or more grounds, the court must order that the respondent pay the applicant's cost. However, 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 cost incurred as a result of that act or omission.

As I said earlier, this model addresses the power imbalances and the resource disparities that are present in many unlawful discrimination proceedings. The equal access model has been modified to recognise that not all respondents in unlawful discrimination matters are large corporations or well-resourced individuals. These modifications mean that the equal access approach can be effectively applied across all antidiscrimination laws, without causing unintended consequences for one stream of complaints. These modifications are intended to reduce the burden on successful respondents that are not well resourced and not at a power advantage over the applicant, which could include individual respondents or small businesses. This approach to cost reform does differ from the 'hard cost neutrality' model that was recommended in the Respect@Work report and the 'soft cost neutrality' model supported by the Australian Human Rights Commission in its 2021 'Free and equal' position paper. There's a good reason for this, as I've just outlined. Where there are these differences in this approach that the government is taking with the bill, it is on the basis of wider consultation that we've done and taking into account the work of the Legal and Constitutional Affairs Legislation Committee in the other place. After all that consultation, the government considers that the modified equal access model strikes the appropriate balance between alleviating barriers to accessing justice for victims-survivors and the burden on respondents while not impacting applicants access to legal representation.

The government has engaged with a range of stakeholders as we've been doing this work, including the ACTU, legal aid groups, the Australian Industry Group, the Australian Chamber of Commerce and Industry and many others—and, of course, the Australian Human Rights Commission itself. There are a variety of views, but I think that there is broad support for the place on which the government has landed in this reform and for the importance of these reforms.

This bill is a big step forward in our government delivering on those recommendations from the Respect@Work report. It is part of us fulfilling our commitment to making sure we implement those recommendations in full. When our government says we will do something, we do follow through and we make it happen. We are ensuring that all workplaces in Australia can become model environments to support people to work safely and free from harassment. With the changes in this bill, we are ensuring that, if sexual harassment does still occur, there is a pathway through that is clear and does not obstruct people from trying to seek redress. I commend this bill to the House.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

I rise to speak on—

A division having been called in the House of Representatives—

Sitting suspended from 11:36 to 11:53

I welcome the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. It aims to address recommendation 25 of the Respect@Work report and does so with some changes, which I welcome. That's because, when I looked at that recommendation in the Respect@Work report, and from my former life as a barrister, where the recommendation went sat a little uneasily with me in terms of changes from the usual cost orders. So I do welcome the approach the government has taken.

The recommendations from the Respect@Work report was to insert a cost provision into the Australian Human Rights Commission Act to provide that a party to proceedings may only be ordered to pay the other party's costs in limited circumstances. I agree with that in principle. The issue of cost protection is one that has exercised my mind for some time now. I spoke about this issue last year when the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill was introduced. I was pleased to support that bill, which also included cost neutrality provisions to provide much-needed security to employees bringing a complaint of sexual harassment. Having come from the Family Court system and the family law system, with the norm being cost neutrality, I know it's an important aspect that can sometimes be difficult, depending on how parties conduct themselves in proceedings. So I'm pleased to see the government continue to seek methods for giving much-needed security and safety to applicants who may otherwise be reluctant to bring forward claims, for fear of being left with a burden of oppressive costs if their claims are ultimately not successful. It is expensive to bring on litigation, and, if unsuccessful, a claimant would in the ordinary course face bankruptcy and complete ruin for having had the courage to bring on their claim.

The intention behind the changes this bill puts forward is to remove the risk to victims and survivors, who may, by seeking redress, open themselves up to the risk of having to pay the other party's cost should they be unsuccessful in their claim. It doesn't take much imagination to see how this would deter a vulnerable person from making a claim of sexual harassment or other form of discrimination in their workplace if there's the risk of having to pay the legal costs of your perceived attacker, or worse—for example, a large organisation with very deep pockets. The many and varied manifestations of sexual harassment and other forms of discrimination have fortunately become more widely discussed and reported on in recent times, particularly since the emergence of the Me Too movement. The previously underreported and debilitating effects of such behaviour have now entered the public consciousness to a degree that enables informed public dialogue and understanding, and this must continue.

Disproportionately, victims are women or people forming part of the LGBTQI+ community or from minority ethnic groups. Their experience of society and, in particular, of the workforce is such that they are significantly more likely to feel marginalised, disempowered and not visible to or recognised or understood by others, making it all the more difficult to bring on allegations and claims. Therefore, although it's not always the case, it is far more likely that they perceive the justice system as being unable to understand the nuances of the very personal and traumatic circumstances which they have experienced and which may have led to the physical, financial and psychological trauma they have suffered. I've not even started to talk about the unpredictable influence of the often self-interested, headline-seeking media, and we have seen that at its worst in recent times.

How does this work in practice right now? Potential claimants will be told by their lawyer that while a judge always has a discretion to make a customised legal cost order—to reflect what the judge considers to be fair in all circumstances—by far the most common situation is that costs will follow the event. In fact, it's the default position. This means that, when the applicant makes out their claim and wins, the respondent will pay the applicant's legal costs. Conversely, however, if the applicant fails to make out their case against the respondent, the applicant could be ordered to pay the respondent's legal cost. When an applicant is taking on, for example, a claim against a large corporation in relation to a workplace issue and discrimination, that is incredibly daunting and can lead to bankruptcy and complete ruin.

There are many reasons why this might be a logical starting position in commercial disputes, and it is the norm that, if you bring on a case and you fail to make out the case, cost provisions should follow that course. However, for a psychologically affected and vulnerable victim or survivor of sexual harassment or other discriminatory behaviour in the workplace, they are already steeling themselves against an extended period of public scrutiny and testing through the adversarial court system. We have certainly seen this with recent allegations and events in this place. This may be one bridge too far, leading them to abandon the attempt to seek legal redress. That means we all pay a price, because the system and workplaces do not become safer and better.

This was recognised by the Respect@Work report, which recommended introducing a cost protection provision. The provision proposed by the government, however, differs in a few aspects, and I must say I do support the differences the government has introduced. Firstly, under this bill, an applicant can only be ordered to pay the respondent's cost if the respondent is successful in the proceedings, so the applicant has failed to make out their case. Secondly, it can only occur if the respondent doesn't have substantial financial resources compared to the applicant. In my mind, this really covers where you have a smaller workplace, or you have an individual where you don't have an incredible difference in means between the two parties to proceedings. Obviously, for smaller businesses, if they are subject to a discrimination or a sexual harassment claim in their workplace, that can also be debilitating. So it's incredibly important we find a fair result in relation to this, a system that encourages and facilitates victims to bring forward the complaint but not a system that will disproportionately impact respondents as well.

Thirdly, an applicant can only be ordered to pay the respondent's costs if the respondent doesn't have a significant power advantage over the applicant. That is clear when we're talking businesses and workplaces, so between an individual applicant and a workplace with many more resources available to them.

These criteria are sensible and are probably fairly easy to establish before the court, whether the respondent was successful in the proceedings and whatever the respondent's financial situation is. I'm concerned that establishing the third criterion might be difficult in terms of whether or not there is a significant power advantage. That won't be an easy task, so I think it will be important to monitor how this legislation progresses in practice and to review it, if necessary, to ensure that it is striking the right balance in assisting victims being able to bring their case forward without that fear of cost but also that we don't have a detrimental and unfair system resulting.

I thank the government and I welcome this bill with these amendments and the implementation of the Respect@Work recommendations. It's incredibly important that we continue to progress healthy, respectful and safe workplaces. The most important thing is that, as members in this place, we have a duty to keep emphasising this. As a member of the Parliamentary Leadership Taskforce tasked to implement the Set the standard report recommendations in relation to the Commonwealth and parliamentary workplaces, I certainly welcome these provisions and urge all members to continue engaging with PWSS and the resources available to us as employers to ensure safe workplaces.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the motion moved by my good friend the Attorney-General, the honourable member for Isaacs. At the last election, Australians voted for change. Australians voted to get wages moving again as opposed to the deliberately low wages that were a design principle orchestrated by those opposite—not all of those opposite but metaphorically opposite, I say to my electorate neighbour the member for Ryan. Australians voted for cheaper child care, cheaper medicine, energy bill relief and more good paying jobs for hardworking families. Most of all, Australians voted for a government that will make things fairer.

We are here today again living up to that ideal and acting on our government's commitment to implementing all the recommendations of the Respect@Work report. In fact, as the Attorney-General has noted, 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 Albanese government is taking this matter seriously and is committed to enacting real reform in this space. We're not here for performative politics. We are dedicated to good governing and looking after all Australians. When those opposite are faced with tough choices, all they offer are empty words and hollow promises. We take action because that is what good governments do.

That landmark Respect@Work report made 55 recommendations to federal, state and territory governments, to the private sector and to the community more broadly. All of the recommendations are driven by the same impetus: to put an end to sexual harassment and to make Australian workplaces safe for all. We know that sexual harassment is a serious and pervasive issue which demands a fundamental rethink of how our laws are shaped to prevent, protect and support individuals who experience sexual harassment.

As we've seen in the Sydney Morning Herald article today, powerful people like Alan Jones can 'go the grope'—that's the quote from the article—with young men and then hide behind their power, their privilege and their lawyers, and then threaten victims speaking out by attacking their wallets. So particularly well done to all of the victims that had the courage to come forward, and to the legendary forensic journalist Kate McClymont. Of course, Mr Jones is entitled to the presumption of innocence—he's innocent until proven guilty—which is, I'm sure, the attitude he took to everyone that he spoke about in his radio show over the years.

Recommendation 25 of the Respect@Work report suggests that the risk of adverse cost orders poses a significant deterrent for applicants in court proceedings, especially when there is a power disparity between the applicant and the respondent. When people feel wronged, it's important that they have the opportunity to take the matter further, without the large barriers to entry that our judicial system currently has. This recommendation suggests that a cost protection provision be enacted to guide a court in awarding costs in discrimination proceedings, and that's exactly what the legislation before us does. It amends the Australian Human Rights Commission Act 1986 to insert such a provision that applies consistently across all federal antidiscrimination laws, making it fairer for all Australians to pursue justice in the federal courts.

Without this legislation, victims of sexual harassment and other forms of discrimination will continue to feel marginalised by the very system that is actually designed to protect them. This disproportionately affects the more vulnerable people in our communities, such as people from the GLBTIQ community, First Nations communities and poorer-paid people, and it presents issues around equal access to justice—something that is a fundamental right of a healthy democracy. In many instances, applicants may be pursuing justice against a large corporation or a well-resourced individual, which already places the applicant at a power disparity in any court proceeding, let alone bearing the burden of potentially having to foot the legal bill for that corporation or individual, should they not be successful. That is not fair nor is it defensible in a country so dedicated to egalitarianism, especially at this time in our long history when we've dedicated ourselves to ending violence against women, tackling racism and rejecting the rise of anti-LGBTIQ+ sentiments—particularly the importation of those attacks from the United States.

According to data from the Australian Bureau of Statistics Personal Safety survey, 92 per cent of women who experience sexual assault do not report it. How horrific is that statistic—92 per cent of women don't report sexual assault. Moreover, more than a quarter of Aboriginal and Torres Strait Islander Australians aged 15 and older have experienced racial discrimination, and almost 50 per cent of complaints made to the Australian Human Rights Commission last year were made under the Disability Discrimination Act. We've got a long way to go when it comes to improving outcomes for victims of discrimination, and it starts at the kitchen counters and dinner tables of Australian households, and here in this building, the people's building.

On Tuesday last week, I heard the member for Bradfield suggest that this bill has been brought forward to help trade unions and class action law firms make money. That's a shameful stance on a very serious issue that the member for Bradfield clearly doesn't quite comprehend. So let me spell it out for the member for Bradfield and shadow minister for industrial relations.

According to the most recent National Community Attitudes towards Violence against Women survey, back in 2021, 34 per cent of people think that sexual assault allegations are used as a way to 'get back at men'. Seven per cent of people believe that only genuine victims report crimes immediately after they happen, and 21 per cent believe that if a woman sends an explicit image to her partner she is partially responsible if he then shares it without her permission. Most disturbingly, though, the survey found that 10 per cent of people think that when a woman says no she really means yes, and 10 per cent of people think that nonconsensual touching is acceptable because 'women are so sexual in public'. One in 10 people on the train think that. Seven per cent of people think that if a woman meets up with a man she has met on an online dating app she's partially responsible if he forces himself on her. This is horrific data. This is why we brought this bill to the floor.

Statistics like these paint a tragic image of the realities that victims of sexual assault and other forms of discrimination experience, and we want to help them. That is who we are advocating for in this bill. Quite frankly, the void of empathy and compassion says we need to do more. We need to do more, and I'd ask the member for Bradfield to reconsider his framing of this legislation. I believe that as a country we can do better. We must do better, and I'm proud to be part of a government that not only takes the issue seriously but then brings legislation forward that takes real action to address it.

A robust judicial system is critical to maintaining a healthy democracy. Ensuring that all people have equal access to the courts, regardless of their financial circumstances, is a fundamental pillar of the court's legitimacy. As an aside, I note that last week in this House we hosted a community legal centres forum—myself and the late great Peta Murphy—where we were making sure that as many communities as possible have access to justice, something that the member for Dunkley, even though she was sick, was still committed to. The top end of town should not be able to muscle victims out of the courtroom, and this government is making sure that that is no longer a possibility. This legislation makes it easier and fairer for people to seek justice in the federal courts and provides certainty for applicants that the court could not order them to pay for the respondent's legal costs except in certain circumstances.

The Respect@Work report recommends a hard cost neutrality model that differs from a soft cost neutrality model supported by the Australian Human Rights Commission in the 2021 Free and equal: a reform agenda for federal discrimination laws position paper. As we saw in the article in the Sydney Morning Herald today—and I know from looking at redress in response to the royal commission into survivors of institutional abuse—a moment of assault can stay with someone for another 80 years. The assailant moves on with their life, but the ripples and the horror can stay with someone all of their life. For victim-survivors the risk of an adverse order for costs is a significant barrier to them 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. Even washed-up media has-beens and serial gropers like Alan Jones know how to send a tough lawyer's letter, as we saw in the Sydney Morning Herald article today.

The equal access model in this bill goes one step further in recognising that not all respondents are well resourced. This equal access model reduces the burden on successful respondents while also ensuring that victims of discrimination feel confident pursuing justice in the courts and not impacting applicants' access to legal representation. The particular circumstances in which a court may order the applicant to pay another party's fees are when the court is satisfied that the applicant deliberately filed for proceedings without reasonable cause or the applicant's unreasonable act or omission cause the respondent to incur a cost. So it still leaves that discretion to the judicial officer. Additionally, the court may order the applicant to pay another party's fees if the other party is a respondent in the proceedings and the respondent does not have significant power and financial advantage over the applicant. Put simply, this bill means that, if an applicant is successful on one or more grounds, the court must order that the respondent pay the applicant's cost. However, if the court is satisfied that the applicant has initiated proceedings vexatiously then the court is not required to order such a payment. So there's always that out under certain circumstances.

Discrimination of any kind is an affront to our moral values as a people committed to a democratic way of life. When the Albanese government identifies issues it acts to rectify them. We will not sit on our hands. Governing is about doing what's right, and we'll always support victim-survivors in any way we can. This bill makes pursuing justice in discrimination proceedings fairer for applicants and respondents alike, while providing certainty to victim-survivors and encouraging them to report discrimination where it occurs.

I commend the bill to the House.

Monique Ryan (Kooyong, Independent) Share this | Link to 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.

Elizabeth Watson-Brown (Ryan, Australian Greens) Share this | Link to this | Hansard source

The Greens welcome the introduction of the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, which would implement the government's revised response to recommendation 25 of the Respect@Work report.

The modified equal access costs protection provision put forward in this bill is one the Greens and many advocates were calling for last year and will ensure that no-one is priced out of fighting sexual harassment in the workplace. Currently, each party bears their own costs, creating a risk that can deter people from making complaints. The decision to make a complaint against someone in your workplace will always be difficult. Costs should not be the determining factor about whether workers are prepared to call out bad behaviour and insist on a safe workplace.

When Labor introduced the Respect@Work bill last year, they proposed an adapted version, where parties bear their own costs, but gave the court broader discretion to award costs where it's in the interests of justice. More than 100 experts, lawyers, victim-survivors, unions and advocates raised concerns that the adapted version would still act as a deterrent and, for some, make it worse. Many women would still fear that taking a complaint would be traumatic and financially risky. Without the ability to be awarded costs if successful, women would also not be able to attract the services of 'no win, no fee' lawyers.

Stakeholders proposed an equal access model, which meant that, if an applicant is unsuccessful, each party would bear their own costs. However, if an applicant were successful, the respondent would be liable for the applicant's costs. Equal access cost protections, where workers can take action without fear of paying the other side's costs if they lose, already exist for whistleblowers. The Greens are happy to support changes that will see these same protections applied to workplace harassment.

Without an equal access cost model in place, many workers, particularly women, weigh up the trauma and financial risk and decide to stay silent. Providing more options for victims of sexual harassment to make complaints doesn't change things if women cannot afford to make complaints. We know that young women are most at risk of harassment in the workplace, and we also know that there are significantly higher rates of harassment in the fast food, hospitality and retail industries, according to the 2018 national survey of sexual harassment. Many workers want the harassment to stop, but they don't want to be named as a victim. They want their workplace to be safe for them and for others, but they don't want to go through a court process and the emotional and financial toll that it takes. The equal access cost protection provision in this bill will help ease an applicant's financial concerns, but we need to see more holistic changes to eliminate harassment in the workplace, including in this one.

The Greens are proud to have kept the pressure up to ensure that no-one is priced out of fighting for their rights at work, be it for sexual harassment or for any other type of discrimination.

Matt Keogh (Burt, Australian Labor Party, Minister for Veterans’ Affairs) Share this | Link to this | Hansard source

It's important to note that the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 is the result of significant public consultation on an appropriate cost protection model for unlawful discrimination proceedings. Firstly, there was the extensive consultation undertaken by the then Sex Discrimination Commissioner and the Australian Human Rights Commission in relation to the Respect@Work report. That report recommended a model based on the Fair Work Act, which we have since heard is not supported by stakeholders nor by the Australian Human Rights Commission, which has updated its position in subsequent reports—nor is that model supported by the opposition.

The government undertook further public consultation earlier this year to determine which cost model was most appropriate. The consultation we conducted found significant support for an equal access cost model; however, the government has been conscious of the very legitimate considerations raised by employer representatives and by the Australian Human Rights Commission. Having regard to those considerations, this bill would introduce a modified equal access cost model. Crucially, this bill would implement the objectives of recommendation 25 of the Respect@Work report, which found that applicants are deterred from pursuing complaints of unlawful discrimination in court because of their potential exposure to an adverse cost order. This reform would help overcome the deterrent effect that the risk of such orders currently poses and, in doing so, alleviate a significant barrier to justice. It'd also provide certainty for all parties as to how costs would be awarded in discrimination cases.

The bill is a vast improvement on the status quo. The bill will ensure that, when an applicant is successful on one or more grounds, the respondent would pay the applicant's costs. In respect to some of the comments made by the member for Bradfield—he raised concerns that the bill differed from the hard cost neutrality model as recommended, but, as referred to earlier, further consultation has recommended against the original recommendation. But we are still implementing the objectives of recommendation 25 of the Respect@Work report.

The bill is the result of significant consultation on the appropriate cost protection model for unlawful discrimination proceedings. The government considers that the modified equal access cost protection provision of the bill reflects a considered and balanced approach that best achieves the policy objectives of recommendation 25 of the Respect@Work report. I commend the bill to the House.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

The question is that this bill be now read a second time. I will put that question for the end of the second reading debate.

Question unresolved.

As the question is unresolved, the bill will be reported to the main chamber.