Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Hansard source

At the outset, I thank Senator Green for her contribution and also the way in which she chaired the inquiry into the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 and its predecessor. This issue has been dealt with in two inquiries of the Legal and Constitutional Affairs Legislation Committee, of which I'm the deputy chair. I also deeply acknowledge and respect Senator Green's history of standing up for and representing workers who've suffered awful instances of sexual harassment. I should also say, before I make my contribution, that I also deeply respect Senator Waters's continued advocacy in relation to these issues, including the safety of women in our community.

The other introductory comment I'd like to make is to recognise those working in the community legal sector who represent women who've been subject to sexual harassment. I want to read a quote from Ms Melanie Schleiger of Victoria Legal Aid, to put this in context:

Even more heartbreaking is telling a person they've got a really strong case and that we will support them all the way, but they can't proceed because it is taking such a heavy toll on their mental health. Sorry, I have been doing this for a long time and I know it has an accumulative negative impact when you see that repeatedly time and again. It feels like the system is so broken.

So there are issues and, as a member of the coalition, I recognise there are issues with respect to the current costs system. My concern is that this is not the right answer. From the contributions of Senator Green and Senator Waters, those listening to this debate would be unaware that the costs model which is being introduced in this bill did not have the support of the former Sex Discrimination Commissioner Kate Jenkins in her Respect@Work report. She actually proposed a different costs model.

The costs model that's proposed in this report does not have the support of the Australian Human Rights Commission, a fiercely independent statutory body that actually works on a day-to-day basis in this space. It proposed a different costs model. The costs model proposed in this bill does not have the support of the Law Council of Australia, whose members represent people every day in this situation. So I say to those opposite, whilst they might warn about those on this side of the chamber raising issues which they consider shouldn't be raised: why haven't you, in your contributions, told those listening to this debate that the costs mechanism in this bill wasn't supported by Kate Jenkins in the Respect@Work report, wasn't supported by the Australian Human Rights Commission and wasn't supported by the Law Council of Australia? Just think about that. If you've got those three individuals and esteemed bodies all recommending against this model, doesn't that raise a question in your mind as to whether or not this is the right model?

The fundamental reason why those individuals and organisations didn't support this model is that they were concerned about the way the model is set up. It's called an 'equal-access model', but it isn't really. I should mention that the application of this model is not limited to sexual harassment. It applies to any claim under our discrimination laws. That includes section 18C which deals with giving offence in certain circumstances. It includes religious discrimination. It includes any discrimination. So it's not just sexual harassment: it's everything. This legislation sets up a model where I can make a claim and be unsuccessful, potentially on all counts, but I have required the respondent—or the defendant, if you like—to go through the legal process. They have had to go to Federal Court and spend, potentially, hundreds of thousands of dollars in legal costs, and they've lost time and incurred expense. I've failed, but that respondent, unless they meet some very, very difficult tests, can't claim costs against me. Does that sound fair? Someone can take you to court, and you incur hundreds of thousands of dollars in costs defending yourself. You're successful in defending yourself, but you can't claim your costs back. Does that sound fair? I don't think so. That's the concern I have with this legislation, and that's the concern that Kate Jenkins, the Australian Human Rights Commission and the Law Council of Australia had. And the thing that disappoints me is that we haven't had an acknowledgement of those concerns that have been raised, so it's very important that I put those concerns on the record.

Let me quote from Emeritus Professor Rosalind Croucher, former president of the Australian Human Rights Commission. I have so much regard for Emeritus Professor Rosalind Croucher. She was an outstanding president of the Australian Human Rights Commission. She was fiercely independent and held governments to account, no matter what their political persuasion. This is what she said. I'm quoting from page 39 of the transcript of the evidence to the inquiry: 'In the Australian Human Rights Commission's view, these models'—that is the model which was proposed by the Australian Human Rights Commission, which I'll talk about in a minute, and the model proposed by Kate Jenkins—'represent a more balanced approach to costs for claims of unlawful discrimination.'

So the Australian Human Rights Commission proposed a model where the court could actually consider a range of matters. It wasn't restricted in terms of what it considered, but it primarily considered the interests of justice in making costs awards. That's because it is so difficult, and I think we should be slow as a parliament to place a straitjacket around the discretion of our judges. The judge is the one hearing the case. Shouldn't they have the discretion as to who should pay the costs? I can't anticipate all of the different scenarios. That should be up to the judge to decide. That's where this bill will be an Australia-first precedent. Nowhere else under any court or tribunal system does this precedent actually exist. It will be an Australian first, and that deeply concerns me.

The Law Council of Australia said:

The Law Council is also concerned that the equal-access model as proposed in the Costs Protection Bill was not recommended by the AHRC—

the Australian Human Rights Commission—

either in its Respect@Work or Free and Equal reports.

In the Respect@Work report, former Commissioner Jenkins said, 'Adopt the Fair Work Commission protocol,' which is that each party pays its own costs. In that case the applicant doesn't have to be concerned about paying the respondent's costs if the applicant is unsuccessful, unless certain particular circumstances occur. Then the Australian Human Rights Commission proposed a model where the court could actually consider what's in the interests of justice in the particular case. I prefer either of those two models to this model which says, 'Even if the applicant is unsuccessful on all counts, the respondent can't get their costs unless they can clear certain hurdles.' I'll talk about those hurdles, which I think are very unlikely to be cleared by any respondent.

So we have the government putting up a model which is not recommended by Kate Jenkins in her Respect@Work report, which is not recommended by the Australian Human Rights Commission and which is not recommended by the Law Council of Australia, and that is deeply concerning. It is deeply concerning especially when both Kate Jenkins and the Australian Human Rights Commission presented models which in their view would address the underlying problem faced by claimants who in the vast majority of cases are genuine. Costs should not prevent any Australian going to court in relation to matters of this gravity, I absolutely agree. But this isn't the right model in my view, and there were some alternative models which I think would have been much better.

Let me run through some of the issues with respect to this model. Firstly, there is the impact on the prospects of settling discrimination matters. The Australian Human Rights Commission, which attempts to settle these matters on a day-to-day basis as part of its work, has said this model doesn't require someone who brings a claim to engage in Australian Human Rights Commission exercises to reach conciliation, to try and resolve it without it going to the courts. It also doesn't enable a court to take it into account if someone made an offer to settle but the offer was rejected and the matter ends up in court.

What about this scenario involving someone running a small business? This isn't a fantastical scenario. I practised law for 25 years, and I've seen situations like this. Just imagine that someone's running a small business, and one of their employees does something which they shouldn't have done. The employer, the small-business owner, wants to try to settle the claim. They make an offer to settle, but it gets rejected. It's a genuine offer, a decent sum of money—they want to move on. The applicant, the claimant, doesn't accept that offer, goes to court and ends up getting less than if they accepted the settlement offer, and the poor old small-business owner has to meet all of their costs and also the applicant's costs, even though they made an offer to settle. Does that make sense? Does it make sense that a small-business owner in that situation is treated the same as Westpac Banking Corporation or Commonwealth Bank of Australia or a company that's got a hundred internal counsel and billions of dollars of revenue? Does that make sense to you? It doesn't make sense to me, and it doesn't make sense to the Australian Human Rights Commission. It didn't make sense to the Law Council of Australia either.

The second issue which was raised was the unintended consequences on the operation of the Australian Human Rights Commission. The Human Rights Commission itself said that it could mean that defendants try and bring certain actions with respect to the Australian Human Rights Commission's process to try and stop matters going to court, and they're anticipating administrative backlogs and additional work. So one of the unintended consequences is that they spend more time and resources with respect to a particular matter. The reality of the matter is that the Australian Human Rights Commission do a wonderful job, but they've got limited resources, and they've raised that concern.

The third concern raised by a number of submitters to this inquiry was that this law doesn't apply just to sexual harassment cases. We heard moving contributions in this debate from Senator Waters and Senator Green with respect to sexual harassment cases. There are very vulnerable young women, particularly in certain industries, that are subject to sexual harassment and whose rights need to be protected, and they should be given every avenue to assert those rights and obtain justice. But this bill goes further. It goes to religious discrimination; it goes to matters under 18C of the Race Discrimination Act. It goes to every matter of discrimination, so a lot of faith based institutions have said: 'We're concerned that this is going to be weaponised against us—that organisations will bring claims against us, accusing us of discrimination as a charity or a not-for-profit education facility. We're going to be dragged into court, and our costs position won't be protected even if we're successful.'

The next point that's been raised is insufficient safeguards to protect charities, small businesses and individual respondents. There is a clause in this bill that tries to do that, and I acknowledge that. However, it has some serious flaws because, even if you're a respondent to one of these claims and the judge finds in your favour on every count, so you win, you've got to prove that you do not have—and this is the expression used—'a significant power advantage over the applicant'. The explanatory memorandum gives an example of a significant power advantage as the respondent being an individual applicant's employer. How can a small business—that potentially tried to settle something, couldn't get it settled, is dragged into court, goes to court and wins on all counts—prove that they don't have a significant power advantage as an employer over an employee? They can't. Practically, it's a nugatory protection, and there's nothing else like this in the law anywhere else. This will be the first time this principle is introduced into our system of justice.

Typically, and this is what I believe, everyone should be treated equally before the law. I think that's a fundamental principle. So I am very concerned about this cost model. It wasn't recommended by Kate Jenkins, it wasn't recommended by the Australian Human Rights Commission, it's not supported by the Law Council of Australia, and I think everyone in this chamber should reflect on those facts and consider it very, very carefully.