Slade Brockman (WA, Liberal Party) Share this | Hansard source

I'll start where Senator Canavan finished. Justice is meant to be blind, and it's a key driver of the fairness of our society and the fairness of our judicial system that we try to have everyone treated the same way. But when you are considering these matters, particularly as a legislator in this place, you must recognise that incentives matter and that the signals you send make a big difference in the way people interact with the judicial system, no matter how well meaning. And let's give the government the benefit of the doubt—and perhaps I'll go on to talk about why I'll withdraw that benefit of the doubt a little bit later on. But if we give them the benefit of the doubt, they're trying to improve the system here.

But there is overreach in the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, which took a very narrow recommendation from the Jenkins report and broadened it out significantly. It will add an incentive into the framework of contesting these human rights types of matters before the courts, which is, quite frankly, very unproductive for our society and offers a new business model to the litigation funders, whom I don't think add a positive contribution to our judicial system. Yes, the cost of exercising your rights under the judicial system is too high, and gaining access to the judicial system is too costly for a lot of Australians. But does that mean that the litigation funders, who generally work on a pay-to-win basis, add a positive aspect to our judicial system? My view is that they do not.

I trained as a lawyer and got a law degree. I never practised as a lawyer; I chose other paths. But one of the things I say to any constituent who comes into my office with a legal dispute is that my first recommendation is to try and sort it out: don't go anywhere near the courts if you can possibly help it, because the court system is expensive. The outcomes cannot always be guaranteed, and those with very deep pockets often have an advantage. If you're a farmer in a dispute with your bank, the scales are very much tilted. But going and getting a litigation funder involved is not necessarily the answer to that problem.

In this particular case, where you have the scales being tilted by government and, once again, the incentives being put into the system, driving behaviour, that is far from ideal. As Senator Canavan very eloquently outlined, you could have people who perhaps have one or two complaints that are meritorious but then they load it up with 14 or 15 complaints which are questionable. Under the protection of this approach to legislation, they may hope to see the costs of litigation being borne by the other party. I think that is a very poor signal to send.

Whether intended or not, that will be the outcome. It will put in people's minds the idea that they can enter these kinds of contested spaces and litigate these human rights matters at no or low risk. That is a very dangerous approach to take in these kinds of matters. The fact is that you should have to think very carefully indeed before you take matters to a court system, to a judicial system. Putting in place a set of incentives for someone to say, 'The likely outcome, even if I only get one success out of 10 or 15 matters that I am prosecuting, is that I will have the costs awarded in my favour,' is a very bad message to send. It is a long way from what the Respect@Work report recommended and what many of the submissions said.

For example, many submissions recommended that cost protections provisions in the Human Rights Commission Act should 'provide that applicants and respondents should bear their own costs unless an exception applies'. There were also submissions saying that costs should follow the event, as a disincentive to pursuing sexual harassment matters under the Sex Discrimination Act. That was the narrow problem that they were attempting to fix, but, as I've said, the scope has crept beyond that and takes us to a different place.

This bill does not implement recommendation 25 of the Jenkins report. It does not implement a provision modelled off section 570 of the Fair Work Act, which is what that recommendation consisted of. It is not aimed at sexual harassment in the workplace, which, again, is what the Jenkins report was all about. Instead, it has been broadened, as I've said, to apply to all federal discrimination matters. It will become a catch-all provision, extending into matters far beyond the recommended scope and intent, as set out in the Jenkins report.

For example, if the government decided to pursue its flawed religious discrimination bill, this bill would apply to religious institutions and schools. Again, this is a very long way, indeed, from what was recommended in the Respect@Work report. This bill implements the Orwellian description 'modified "equal access" model'—think about those words in combination. I'm sure many of those listening to this are puzzled by what that phrase actually means. It is a truly Orwellian phrase, because this model is not about equal access at all. Even the government's own materials put 'equal access' into quotation marks because it's not about equal access, which I find quite extraordinary.

This model does not remove barriers in a way that preserves the integrity of litigation and the discretion of the court. Instead, it tilts the balance in favour of the complainants, regardless of the nature of the complaint and the conduct of these proceedings. That, in a nutshell, is why this bill goes too far. It goes further than any other Australian jurisdiction and any other comparable nation.

The current approach in our courts is for cost orders to reflect on the conduct of the proceedings, the merits of the parties' positions and the ultimate outcome. I think most people, on hearing that, would say, 'Well, that sounds like a pretty reasonable approach.' It looks at how the proceedings have been conducted by both parties—so whether there has been vexatious action, whether people have been timely in their handling of matters and their handling of the provision of information, the way they've approached the court and the way they've approached the other party in terms of the proceedings. It also looks at the merits of the parties' positions. That's what courts do in the end; they look at the relevant merits of the case for the parties. Often cases aren't black and white; in fact, very few cases, particularly in this area, are black and white. They're very difficult and nuanced areas where judgements are going to be made. And then the courts also need to look at the ultimate outcome: has someone been found to have been in breach of the law? That would, I think, in most people's minds, be quite a reasonable benchmark by which courts can seek to achieve justice.

This is quite fair and reasonable. Judges who are hardworking and try their best to be independent—and I do not think judges take their responsibilities lightly. This bill removes discretion from judges, from the courts, because it requires that the court must award costs to a complainant—the person who brought the original complaint to the court—if they are successful on one or more grounds. That removes the ability of the court to make a decision that one party, whilst they may be successful on one ground out of 15, perhaps doesn't deserve to be rewarded for taking the matter to court in the first place—that perhaps they shouldn't be rewarded by having any cost order in their favour. This is a frequent outcome in courts, where they say: 'Yes, you've won a small part of the case, but, in bringing it to the courts, you are not actually achieving anything, and you are not going to get an order for costs in your direction.' This bill takes away that discretion and forces the judge involved to award costs in favour of a complainant even if, on the balance of all the activities in the case and all the conduct during the proceedings of the case, looking at the relative merits of the parties' positions and then looking at the ultimate outcome—effectively, this law says the ultimate outcome is the only thing that matters.

I think this bill is overreach. I think it goes too far. I believe we should oppose this bill.