Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

The Greens really welcome the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. This bill stems from recommendation 25 of the Respect@Work: sexual harassment national inquiry reportwhich was released in 2020, so these reforms have certainly been a long time coming. While this bill proposes a cost model different to that which Kate Jenkins proposed in Respect@Work, there is good reason for that.

The current cost rules are essentially that costs follow the event, and if you lose you pay the other side's costs. Kate Jenkins recommended that that change and be essentially an each-bear-own-costs rule. That represented an improvement in that you wouldn't be saddled with the other side's costs if you lost, but it still wouldn't help you pay your own legal fees if you won. After some very welcome consultation with the sector and with the Greens, including our suggestions in the additional comments to the inquiry into earlier versions of this bill, we're really pleased that the government has proposed a slightly different cost model, which is now what is in the bill. The modified equal access cost protection provision in this bill is one that the Greens and many advocates have called for. It will ensure that no-one is priced out of fighting sexual harassment and discrimination in the workplace. It means workers who've been subject to sexual harassment or discrimination at work will be able to seek justice and not be in danger of paying the other side's costs if they lose, but if they win they will have their costs paid for by their dodgy employer.

It's important that these cost provisions will apply to all unlawful workplace discrimination, including age, race and other protected attributes—and that is a good thing, because costs should not be the determining factor in whether workers are able to call out bad behaviour and discrimination and insist on a safe workplace. Without an equal-access cost model in place, many workers, particularly women, weigh up the trauma and the financial risk and decide to stay silent. It shouldn't bankrupt vulnerable Australians to take up a matter of sexual harassment or discrimination.

The Women's Legal Centre in the ACT observed to the Senate committee inquiry into the Respect@Work bill in 2021, which is apposite here:

Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise many women decide not to take this gamble.

Providing more options for victims of sexual harassment to make complaints, which this government has done, doesn't change anything if women can't afford to make complaints. Rights on paper are meaningless unless you can afford to enforce them.

The 2022 national survey of sexual harassment found that young women working in the fast food and retail industries are experiencing significantly higher rates of workplace harassment. Those industries are comparatively low paid and are characterised by unpredictable and insecure work, so the financial risk of taking action against an employer remains a significant barrier to workers making complaints. The decision to make a complaint against your employer or someone in your workplace will always be difficult, but deterring someone from coming forward could mean the difference between a harassing boss being held to account or that boss being allowed to continue harassing other employees. I say it again: costs should not be the determining factor in whether workers are prepared and able to call out bad behaviour and discrimination and to insist on a safer workplace.

Equal-access cost provisions, where workers can take action without fear of paying the other side's costs if they lose, already exist for whistleblowers to remove barriers for people calling out misconduct. They should exist for whistleblowers. They should also exist here, and that's why we're pleased to be supporting this bill. The same rules should apply for calling out workplace harassment, and, hence, our support. The modified equal-access cost modelling in the bill will help protect young women in those industries, and it will help set the standard for workplace behaviour. The bill represents a generational opportunity to change workplace culture.

The Greens are proud to have kept the pressure up to ensure that no-one's priced out of fighting for their rights at work, whether that be for sexual harassment or any other type of workplace discrimination. Respect@Work recommended reform in this space four years ago. We've had this bill on the shelf for more than a year. Workers can't afford any more delay in being able to access justice.

Now, I note that the opposition have circulated amendments that propose, essentially, an 'each bear their own cost' model, except where a case is frivolous or vexatious or where a party has, by an unreasonable act or omission, caused the other party to incur costs. This proposition totally ignores the fact that workers will rarely be able to afford to seek justice and they won't be able to pay for legal representation to get justice. The reality is that lawyers will want to be paid, and, without the reassurance that costs will be awarded if they win, many employees simply won't be able to afford to proceed to the courts.

Some people in this chamber have concerns that these new cost rules will be detrimental to small business. Well, I can reassure anyone who might be concerned about that that this bill already has plenty of protections for small businesses. If the worker's case is vexatious or without reasonable cause, or their actions or omissions cause unreasonable cost, they can have costs awarded against them, and, if the worker is unsuccessful and the employer doesn't have a significant power advantage or significant financial or other resources relative to the worker, that employer can have their costs paid. This is more than enough protection for employers. Where small businesses don't have that significant power or resource advantage over the applicant, the court retains a discretion to ensure that cost rules are applied fairly. I might also add that, if small businesses don't harass their workers, they will be fine.

One wonders whether the concern is that workers will make up false claims against their small-business employer, because the whole notion that women in any way benefit from going public on claims of sexual harassment or assault is laughable. Everyone sees the victim-survivor pilloried and retraumatised, and it's usually her that suffers the career detriment, when the perpetrator can generally carry on, mostly unaffected. Some senators in this chamber have previously taken some dubious positions in relation to women's rights in the workplace, in the service of trying to defend small business—and I hark back to the paid parental leave debate—but I really hope that, in seeking to protect small businesses, no-one's implying that women make up harassment or abuse. We don't. Why would we when it's us that are put on trial and it's us that suffer all of the weight, scrutiny and the vitriolic public commentary? The media is littered with examples of that. This is the reason that most sexual harassment and discrimination goes unreported. When someone has the courage to report it and seek justice in the workplace, why would you want to put further barriers—financial barriers, which are very real and particularly pronounced in a cost-of-living crisis—in place to stop that?