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

Well, with that delightful guidance, I move opposition amendment on sheet 2384 in relation to costs:

(1) Schedule 1, item 3, page 3 (line 10) to page 4 (line 20), omit section 46PSA, substitute:

46PSA Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court in relation to a matter arising under section 46PO may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2).

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the Commission;

(ii) the matter arose from the same facts as the proceedings.

I will make a few comments in relation to it. This amendment would essentially implement what was recommended by Commissioner Jenkins in her report. We all have a great regard for former commissioner Jenkins in relation to this jurisdiction. Commissioner Jenkins actually proposed that the costs provision that should apply under this legislation should be similar to section 570 of the Fair Work Act. That's what Commissioner Jenkins proposed in relation to sexual harassment. Former commissioner Jenkins made a profound change in relation to the issue of sexual harassment and how it is viewed in the wider Australian community and how it is viewed in relation to this parliament, and that was Commissioner Jenkins's recommendation: that Section 570 of the Fair Work Act should apply with respect to costs in relation to this issue. And that is what this amendment proposes. It proposes that this bill incorporate the costs provisions that were proposed by former commissioner Kate Jenkins.

As I said, the Australian Human Rights Commission proposed something where the court could consider a whole range of issues in the interests of justice. The bill doesn't reflect that either. But we in the coalition have a great respect for former commissioner Jenkins. We believe that her recommendation on costs provisions should be applied and the provisions that are contained in section 570 of the Fair Work Act should be reflected in this legislation.

That would mean that, as a general proposition, each side would pay their own costs, as happens in relation to industrial relations matters. However, there would be a provision allowing the court to depart from that general approach, so that the court could consider the particular circumstances of the case and then decide that, in the particular circumstances of the case, one side or the other should actually bear costs. We think that is a fair and equal-sided approach to this issue.

We get great comfort from the fact that the former Sex Discrimination Commissioner, someone as eminent as former commissioner Kate Jenkins, proposed this approach. We think that it's the right approach. We are terribly concerned, and the Law Council of Australia has raised concerns, the Australian Human Rights Commission has raised concerns—a whole heap of stakeholders have raised concerns—that what the government is proposing at the moment is too one-sided. For example, it means someone could bring a discrimination claim against a small business or sole trader, and, simply because that sole trader or small business couldn't settle or resolve that matter—and we'd all like to see these matters resolved as quickly as possible—they could be taken to court. Say that small business were to win in court. On the basis of the proposition that the government is putting forward, that small business, unless it went through some impossible hurdles, could not get its costs from the applicant, even though it had succeeded in court. Does that sound fair? Aren't we all meant to be treated equally before the law? What's proposed in this bill would be absolutely the first time this sort of principle has been introduced in any such legislation across the whole of Australia. No other legislation and no other jurisdiction has a cost system like this.

I note Senator Waters's interjection that I'm wrong in that regard. Well, if I'm wrong, the Law Council of Australia is wrong.