Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Hansard source

Thank you, Senator Scarr. Of course, I wouldn't dare correct anything that Minister Watt has said in this chamber. In order to make clear the position on the question that I think you're asking: the government considered a range of cost models and determined that this modified equal access model, as adopted in the bill, would address the significant barrier presented by costs in a way that balances the interests of both parties.

The government's reforms will be a significant improvement in the status quo. Currently, the default position is that the costs follow the event. This means that an unsuccessful party would be ordered to pay the costs of a successful party. For people who have experienced harassment and discrimination, this is a significant deterrent to commencing proceedings. This uncertainty is heightened by the lack of legal precedence in discrimination law matters. In contrast, the soft cost neutrality approach, recommended by the Australian Human Rights Commission, would require each party to bear their own costs in unlawful discrimination court proceedings. This means that, even where an applicant is successful, they may still be out of pocket due to the costs exceeding the damages. This model provides less certainty to applicants about how costs would be awarded. Stakeholders have raised concerns that this model can impact the applicant's ability to secure a no-win no-fee legal representation.