Nita Green (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I spoke briefly on the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 last night, and I'm very pleased to continue my contribution. As I said last night, this is an important bill that seeks to provide access to justice for victims of sexual harassment and other forms of discrimination in the workplace. To give a bit of background on this bill, we know that the Respect@Work national inquiry provided clear vision for addressing sexual harassment in workplaces across the country. It was an inquiry that listened to experts, advocates, legal experts and survivors. Its key finding was that our country needed to provide reforms to address sexual harassment within our workplaces.

This costs protection bill represents a key element of that vision because it recognises that financial risks of legal action are a significant barrier for individuals who've experienced sexual harassment within their workplace to pursue justice. Men and women who seek unlawful discrimination claims deserve to seek justice without unforeseen financial cost, especially if they are facing a big corporation or institution, which typically have better access to financial resources, information and legal support to defend the claim.

I feel it should go without saying that this legislation is crucial for the future of unlawful discrimination proceedings and the success of access to justice. The costs protection bill would be a reform that will enhance our justice system. It ensures that applicants could access discrimination claims without the risk of bankruptcy or debt for simply wanting to stand up for their rights. It sends a clear message that our community values the people who are standing up to receive justice and that the suffering that they have endured in their workplace should not be further exacerbated by financial inability. It provides greater certainty and stability to unlawful discrimination proceedings, which will be guided by a consistent approach to cost allocation.

It must also be acknowledged that this reform is part of a bigger picture to make our justice system more accessible. Our government is committed to addressing discrimination within our country and this reform is just one of the steps we're taking to support men and women who experience sexual harassment and violence. I do want to address some of the concerns that have been raised by those opposite, and I'll go to those in a moment. But I want to be really clear about what this bill does and why we've adopted the approach that is in this legislation. While an equal cost approach is widely accepted among experts, academics and survivors, there have been some concerns that the reform could encourage unmeritorious claims or encourage parties to look at the justice system rather than engage in conciliation or alternative dispute methods.

It must be emphasised that we have a legal system with robust mechanisms to filter out these types of claims. It is also commonly known that false claims of sexual violence sit at the two to five per cent range. This should not scare us away from introducing an equal-cost model. To address the concerns that have been raised—that people will turn away from alternative dispute resolution methods due to this bill—it is unlikely that not paying response costs will encourage a huge influx of these claims.

There are still many factors that individuals consider before seeking justice before the courts, including alternative dispute resolution. This reform will, rather, ensure that costs are not the sole reason an individual decides not to pursue an unlawful discrimination case, which is the way that things are at the moment. Costs are commonly the reason why an individual decides not to pursue an unlawful discrimination case. Pursuing justice in our courts is a right that every individual should have, and this reform is rooted in fairness and equity.

The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 is a reform that will change the lives of those that have experienced unlawful discrimination within our workplaces. By introducing this costs protection provision, the bill would alleviate financial barriers that currently discourage many from pursuing legitimate claims. It addresses the critical need to balance access to justice with those financial realities of our legal system and recognises that those who seek redress for discrimination should not be penalised by the risk of adverse costs.

We know that men and women who experience sexual harassment and make the decision to seek a legal claim deserve to seek that justice, without the concern that they will have to pay hundreds and thousands of dollars in legal costs for standing up for their rights. The bill is about reinforcing our commitment to justice, fairness and equality. It's also about making our workplaces safer, and it is about ensuring that every individual, regardless of their financial situation, has an opportunity to have a safe workplace, to seek that type of justice and to ensure that we stamp out sexual harassment in our workplaces forever.

By supporting this bill, we're making a significant step towards a more just and equitable society that supports survivors, and it gives them a pathway to ensure that they can seek justice if they are harassed at work. As I said at the beginning of my contribution, Deputy President, I am very proud of the previous work that I did, before coming to parliament, working with all types of workers across all types of workplaces, but the work that I am proudest of is sitting down with victims of sexual harassment in the workplace and working through with them the options they have and seeking justice on their behalf.

I know that, particularly, these women—we know more women are harassed at work—don't seek legal compensation or a legal claim without seriously considering all of the pathways available to them. I also know the incredible toll this takes on an individual. It means that they usually have to leave their work. They are usually subject to mental health PTSD types of long-term health outcomes because of the harassment they've received, and it makes it harder for them to work again and it makes our workplaces less safe for the women that come next time.

I'm very disappointed to see the views being put forward by some of those opposite. I know that there are principled views coming from some of those opposite, but I suspect we will hear some really disappointing views from the Liberal and National parties today about the idea that women make up claims, that this will somehow create an explosion in cases and that protecting victims in this way is a step too far when it comes to protecting women in our workplaces. It's just not true, and it is so separate from the reality of what victims go through when they make the really brave decision to stand up and say that something has happened to them at work and seek justice for it. For every single one of the claims that will be made by those opposite, those in this chamber should remember all of the evidence that we received during our inquiry into the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 and that was received during the Respect@Work inquiry. The decision by those opposite to not support this bill and make claims that it will make the justice system worse is another legacy of the shadow Attorney-General seeking to prevent the Respect@Work bill and the Respect@Work report recommendations being implemented.

The Respect@Work inquiry was historic, and it was delivered at a time when women were calling for real and decent change in our workplaces and in our homes. That report, containing 55 recommendations, sat on the shelf under the previous government and was never implemented. Our government sought to implement those recommendations. We've listened to the advocates, the women, the people that stand up next to them and the people that stand up for them, and this is the next step in developing that work.

It is really important today that we don't get lost in some sort of legal minefield that those opposite are going to try to create. What we need to make sure we do is to remember what this bill is about. It is about making sure that victims of sexual harassment and unlawful discrimination have a pathway to justice and that they are not precluded from seeking that because of the way that our costs system works at the moment.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to 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.

Dave Sharma (NSW, Liberal Party) Share this | Link to this | Hansard source

I rise to associate myself with the comments of my colleague Senator Scarr and commend the work he did on the committee in scrutinising the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, because there are some serious concerns about the implications and consequences of this piece of legislation.

I would group them into five categories. Firstly and foremost, the bill does not follow the recommendation of the Jenkins report.

Secondly, it goes well beyond its original scope. It extends not just to claims of sexual harassment or discrimination but, as my colleague Senator Scarr just said, to any and all types of claims under discrimination law.

Thirdly, it removes the discretion of judges in the awarding of costs, which is an important feature of our justice system and is intended to take into account the wide variety of circumstances that exist between an applicant and a respondent in these sorts of matters.

Fourthly, it's likely, as the Australian Human Rights Commission and others have said, to inhibit the efforts to reach a settlement at an earlier stage of the dispute. In fact, if you're an applicant, it disincentivises you from reaching a settlement because the approach it encourages is one of all reward and no risk if you proceed down the path of litigation.

And, fifthly and finally, the legislation takes into account the characteristics of litigants in a way that is unusual, untested and sets a dangerous precedent. One of the features of our justice system is that justice is meant to be blind—that is, justice is meant to assess the law impartially without having regard to the characteristics of the litigants before the court. But what this legislation does is instruct the court to take into account whether there is a power imbalance, whether there is a financial imbalance and what means or resources a respondent has behind them in a way that renders nugatory this injunction that justice should be blind.

Now, undoubtedly, the main thrust of this bill is to address an important issue that was identified in the Jenkins review. During that review, the commission received several submissions urging them to insert a cost protection provision into the Australian Human Rights Commission Act, recognising that the current costs regime, where costs follow the event, can operate as a disincentive for pursuing sexual harassment matters under the Sex Discrimination Act. This is an important issue that should be addressed because we have heard—this parliament has heard and the Senate committee has heard—how complainants may be deterred from pursuing legitimate discrimination claims in the courts because of the risk that they will ultimately be liable for the costs of the respondent.

What the Jenkins review recommended in recommendation 25 was that the Australian Human Rights Commission Act be amended to insert a cost protection provision consistent with what exists in section 570 of the Fair Work Act 2009, which provides for costs only being awarded against a party by the court if 'the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause' or if 'the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs'. That is the recommendation of the Jenkins review. It basically recommends the importation of an entire provision very similar to that which exists in section 570 of the Fair Work Act.

But what we're dealing with in this legislation goes way beyond that. The scenario we have here is that, if a person takes a complaint to the Human Rights Commission and that ends up in the Federal Court, the bill says that the court must award costs to the complainant if they are successful on only one or more grounds. The complainant could bring a claim on five, six, 10, 11 or 12 grounds, but if they are successful on one or more grounds they should be awarded costs. That rule in this legislation is to apply in all circumstances to all cases except when the costs are incurred as a result of a complainant 's unreasonable act or omission.

The model also says in this legislation that the court must not award costs against the complainant unless some very narrow exceptions are met. The court can only award costs against a complainant and to a respondent if they are satisfied that the complainant instituted proceedings vexatiously or without reasonable cause or that the complainant's unreasonable acts or omissions caused the respondent to incur costs, and only if the respondent is successful in the proceedings if the respondent does not have a 'significant power advantage' or does not have significant financial or other resources relative to the complainant.

The way this bill is drafted means that, if a complaint is brought on 10 grounds and nine of those are dismissed, the respondent will still have to pay all the costs because they lost on that one ground. And, even if the respondent is successful on all counts—that is, the court finds no claim of discrimination or discriminatory conduct—they will not get their costs paid if they have a significant power advantage over the applicant. That would often be the case in employer-employee relationships. Nor will they get their costs paid if the respondent has significant financial or other resources. Again, that would often be the case because it will often be a corporation or a business that is the respondent in these circumstances.

What this bill does, effectively, is incentivise litigation and disincentivise negotiated outcomes because it removes any substantial risk for the complainant that they will need to carry the costs of the other side if their claim is unmeritorious or found to be without foundation.

The bill even removes the provision that allows the court, in assessing costs, to take into account offers to settle. That means that, if you have a complaint made against you and you make a good-faith offer to settle but the applicant chooses not to settle and ultimately their claim is unsuccessful, in the decision about whether costs should be awarded the court does not have the discretion to take into account the fact that there was an attempt to settle this matter earlier.

So, effectively, there is now no downside to pressing ahead with a low-prospect claim, and that will undoubtedly be exploited.

We heard from the Human Rights Commission during the inquiry into this bill their own concern that this bill would perhaps unintentionally take away their own ability to encourage early settlement of these disputes, rather than going to court. We heard similar concerns expressed by the Law Council of Australia as well.

I did want to read some of the comments that were made in response to that committee's inquiry because they bear it out quite clearly. The Human Rights Commission said:

As Australia's National Human Rights Institution, the Commission is concerned that the reforms proposed may have unintended consequences on the effectiveness of alternative dispute resolution options aimed at facilitating early resolution of complaints, including settlement offers and the Commission's conciliation function, and may impact on the Commission's role in stemming the flow of complaints that proceed to court.

So here we have the Australian Human Rights Commission warning that this bill may well have unintended consequences, that it may well frustrate the early resolution of complaints, including settlement offers, and that it may well impact on the commission's role in stemming the flow of complaints that proceed to the court. We also heard from the Law Council of Australia, who said:

The Law Council is concerned that the Costs Protection Bill tilts the balance overly in favour of the applicant and moves the financial risk and disincentive for unmeritorious claims to the respondents … the Law Council is concerned that the Costs Protection Bill reduces incentives for the parties to engage genuinely with the AHRC's conciliation processes and, later, in any alternative dispute processes available … It could also render offers of compromise and Calderbank offers ineffective.

We have here legislation that is not actually doing what the Jenkins review recommended. It's not helping to level the playing field or remove disincentives to bring in legitimate sexual discrimination claims. Instead, it is going a lot further than that. In particular, I wanted to touch on one provision that is genuinely unprecedented in many respects, and that is the characteristics of the litigants, or the applicant and the respondent. This is the provision which would require the courts, when they're assessing whether costs can be awarded, to treat respondents differently based on their financial power or financial means. The Law Council had this to say about that provision:

Further, as a matter of principle, it is inappropriate for the courts routinely to treat parties differently based on their power or financial means relative to other parties, particularly where they have not engaged in unlawful conduct.

But what this bill does is exactly that. You can be a respondent who has not engaged in unlawful conduct, and all the grounds on which a discrimination claim has been made have failed. You have not been found to have a case to answer. You may well have made earlier offers to settle this dispute through the Australian Human Rights Commission's conciliation procedures or other channels, but the applicant has denied to do so. Ultimately, if the court decides that you are, as the respondent, successful—that there is no case to answer—you will not see any of your costs recovered, you will not be able to recover any costs, if you have a significant power advantage over the applicant or if you have significant financial or other resources relative to the applicant. As I said earlier, this will almost inevitably be the case. If you had an employee suing an employer or a corporation that stood behind them, it would be hard for the court to find that you did not have a significant power advantage over the applicant or that you did not have significant financial or other resources relative to the applicant.

This strikes at the heart of the principle that justice should be blind—that is, it should not take into account the characteristics of litigants when making an assessment, the law should be applied impartially and we are all equal before the courts. Particularly, if you have not been found to have been at any fault whatsoever, the idea that things that are unrelated to your conduct should be taken into account by the courts, which is being alleged in this case—your financial means, your relative resources and whether you're in a position of high status within society—strikes at the heart of liberal democracies and the principle of the rule of law, the principle of equality before the rule of law. What it effectively seeks to do is import a power based calculus into a legal system that is founded, instead, upon the impartial application of principles.

Why has the government done this in this legislation? Why has the government gone significantly further than was urged in the Jenkins review, gone significantly further than recommendation 25 in that review, to import an entirely new test for the ordering of costs rather than to take on board that in section 570 of the Fair Work Act, as suggested in the Jenkins report? It goes beyond the original scope, extending not just to claims for sexual harassment or discrimination but to any and all types of claims under discrimination law and to removing the discretion of judges in the awarding of costs. Undoubtedly, this will have class action lawyers and litigation funders rubbing their hands together with enthusiasm because, unintentionally or otherwise, it will encourage unmeritorious claims, it will discourage early dispute resolutions and offers of settlement, it will add complexity and risk to the lives of anyone involved in commercial activity, and it will clog our courts with potentially quite unmeritorious claims in a way that goes way beyond what Kate Jenkins recommended in her review recommendations and that goes much further than what is required to remove what I accept are at the moment significant disincentives to the pursuit of sexual discrimination claims.

That is why I do not support this legislation as drafted. That is why the coalition has put forward an amendment which faithfully, comprehensively but not expansively seeks to implement recommendation 25 in the Jenkins review. I urge all in this chamber to study this legislation closely because it could well be the thin end of the wedge.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

I rise to also make a contribution on the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. This bill was meant to do one job: implement recommendation 25 of the Respect@Work report, the recommendation to create a simple cost-neutral jurisdiction in our federal courts and to remove barriers to women who deal with sexual harassment in the workplace. Recommendation 25 dealt specifically with pursuing sexual harassment claims in the courts, and a bill to address that recommendation would have undoubtedly had support right across this chamber. But this bill does not implement recommendation 25 of the Jenkins report. This bill does not implement a provision modelled on section 570 of the Fair Work Act. It is not aimed at sexual harassment in the workplace. Instead, it applies to all federal discrimination matters. That is a massive problem, because we know that federal discrimination legislation in this country is fundamentally broken.

Instead of protecting women, as the Sex Discrimination Act was intended to do, we now see in this country a situation where the act is used as a weapon to punish and silence women. We have seen that happen recently in the courts with the absurd situation of the Tickle v Giggle case, where an Australian woman has been punished and fined for starting a female-only app. The decision in that case makes clear that the courts will interpret the current legislation such that 'female' can mean someone who is biologically male. The courts found that sex is changeable and can relate to what clothes you wear or how you present yourself, which means that all the provisions in the Sex Discrimination Act which were intended to specifically allow and encourage single-sex services for women and girls are now all but impossible to rely on, which means that Australians who offer single-sex services for women and girls—services which millions of Australian women and girls rely upon—risk being taken to court and fined just for doing this. I am concerned that this bill will incentivise exactly that type of litigation we have seen in the Tickle v Giggle case, by protecting an applicant who wants to try and undermine something like single-sex services for women and girls from having to pay costs even if the vast majority of their claims are dismissed. It is very easy to predict how this will be used to target any organisations, clubs or volunteers who seek to offer single-sex sport for women, for example.

This bill presents a free swing in the courts for activists who want to force a sporting body to allow males into female sport. Thanks to the changes the Gillard government implemented in 2013, it's already incredibly difficult to offer single-sex sport, services or facilities for women and girls in this country. That's because the previous Labor government, the Gillard government, took the definition of 'woman' out of the act and severed the term 'sex' in the Sex Discrimination Act from its biological meaning, as the UN Special Rapporteur on violence against women and girls, Reem Alsalem, said last week in her statement on the Australian Sex Discrimination Act and the implications of the current interpretations of it:

I am also concerned that the court decision could make it potentially harder for women and girls to argue for the proportionality, legitimacy and necessity of female-only spaces in some circumstances. Even if unintentional, the ruling by the Federal Court may have made it potentially harder for women and girls in Australia to avail themselves of the full breadth of protections provided by the international human rights treaties that Australia is part to, including CEDAW and the ICCPR …

Ms Alsalem correctly stated:

While the Act differentiates between the concepts of sex and gender identity, this distinction is abandoned in practice.

It is inexplicable and nonsensical that the Albanese government, in full knowledge that federal discrimination law allows a woman to be punished in a court just for offering single-sex female services, has chosen with this bill to make it easier for activists to lodge those very complaints in the court by expanding the intention of this bill out far more broadly than the Respect@Work report originally recommended. These are the unintended consequences that we may see.

This bill was supposed to be about implementing recommendations specifically about sexual harassment complaints. The Albanese government has taken a political decision here—let's be very frank about that—to apply this to all discrimination complaints, in full knowledge that many of these complaints that we are seeing more and more of here in this country, such as in the Tickle v Giggle case, are being used to silence and punish women. The way the Labor government has quietly extended this bill to include all types of discrimination complaints rather than to be specific to sexual harassment cases is eerily similar to the way they removed the meaning of 'sex' and the definition of 'woman' from the Sex Discrimination Act in 2013. In 2013 it was never mentioned by the government that their changes would have the effect of enabling a court to punish a woman for offering a female-only service. Their changes would have the Sex Discrimination Commissioner telling the court that the way you dress helps to determine your sex for the purposes of the act. They didn't mention any of that, and, a decade down the track, Australians are seeing the consequences of that sneaky omission.

Today, again, we have a bill being presented as being purely about sexual harassment cases, when the reality is that the government has decided that the bill will apply to all discrimination complaints, including those that activists will bring against women who are trying to offer single-sex services, single-sex sports or single-sex spaces. What we should be seeing here today is a bill that doesn't do what it was supposed to do but goes way beyond that.

The way this bill has been drafted means that, even if a complaint is brought on 10 grounds and nine are dismissed, the respondent will still have to pay all costs, because they lost on that one ground. And as I've just referenced, a discrimination complaint can be brought under current legislation in incredibly dubious circumstances, such as to compel women to accept males into female-only spaces. If someone who was forced into a court for a complaint like that wins on nine counts and loses on only one, why should they have to foot the bill for the whole case, including the grounds they won on? How does that give the best effect to justice?

The bill leaves open the possibility that the respondent must pay, even in respect of grounds that are unsuccessful, because these are all part of the same proceeding. If you are successful on any ground, you recover all your costs, and if you lose completely, all you have to do is bear your own costs. If you make 20 complaints or 20 claims and you succeed on just one, this bill leaves open the possibility that the respondent will be forced to pay for all of them. And it means that, in effect, there is no downside to pressing ahead with a low-prospect claim.

Again, if we're talking about claims of sexual harassment, that was a recommendation of the Respect@Work report and we understand why the government would want to do it, but what they propose here today goes so far beyond that that it's not even funny. This bill takes a different approach to what was recommended. It does not implement recommendation 25 of the Jenkins report and it does not implement a provision modelled on section 570 of the Fair Work Act. It's not aimed at sexual harassment in the workplace. Instead, it applies to all federal discrimination matters and it would become a catch-all provision extending into matters far beyond the recommended scope and intent. The government is not being up-front today about why it has done this and why it didn't want to bring in a bill that actually would have dealt with the scourge of sexual harassment in this country.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

As we've heard from several speakers from the coalition, the Australian Human Rights Commission (Costs Protection) Bill 2023 is a bill that should—should—be implementing recommendation 25 of the Respect@Work report. For those who are following and interested, recommendation 25 was:

Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth).

Section 570 of the Fair Work Act says, in summary, that in a case related to the Fair Work Act a party can only be ordered to pay the other party's legal costs if certain conditions are met. The party may be ordered to pay the costs only if (a) the court believes the party started the case just to cause trouble—vexatiously—or without a good reason, (b) the court believes the party did something unreasonable that caused the other party to incur extra costs, or (c) the party refused to take part in a related matter before the Fair Work Commission, and that refusal was unreasonable. The Respect@Work report made 55 recommendations across a range of areas, many of which have now become law with the coalition's support. But this bill takes an entirely different approach to what was recommended in the Jenkins report. It does not implement recommendation 25 from the Jenkins report. This bill does not implement a provision modelled on section 570 of the Fair Work Act. It deviates from what was recommended. It's not singly aimed at sexual harassment in the workplace either; instead, it applies to all federal discrimination matters.

For some reason, the Attorney-General has allowed for the possibility that, if even one part of a complaint is upheld, the individual or business may be required to cover the costs of the rejected portions of the complaint. This makes it extremely troublesome for people in this space. It will become a catch-all provision extending into matters far beyond the recommended scope and intent. The overreach here is of serious concern, grave concern. The costs that would be imposed upon individuals and organisations—without the necessary protections, without the narrow scope that is required, as recommended by the Jenkins report—puts this bill into the 'very dangerous' category. The Attorney-General is trying to dress up this bill under the guise of sexual harassment in the workplace, but it goes much broader than just sexual harassment. We know that this bill is aimed at more than that. It is another Labor bill that seeks to overreach.

Unfortunately, we're seeing this time and time again with legislation that comes into this place, whether or not it is through poor drafting. I think there are some occasions where it's an oversight. We can give them the benefit of the doubt. Maybe through their haste and folly they've rushed through legislation and the considerations haven't been properly thought out. And then there are moments, like those we're seeing with this bill, when it seems that there is an intended outcome for it to be overreaching and for it to go far beyond the scope that Jenkins recommended, and that's what we're seeing here.

My concern is that this bill will have unintended consequences, particularly for people of faith. It's difficult to give this government the benefit of the doubt when it comes to matters of religion and matters of religious freedom. We've already seen their first disastrous attempt when it comes to protecting religious freedoms. That attempt, quite rightly, led to a backlash from many sectors of the faith community. It has been quite an extraordinary display that the faith community have made and quite an extraordinary step that they have taken. By their nature, they turn the other cheek. By their nature, when it comes to people of faith and faith community groups, there's a particular predisposition to be meek and mild, but they were forceful in their opposition to the government's plans when it came to the religious discrimination bill.

The government, shamefully, have turned their backs on faith communities across Australia. I'm glad they're not implementing the bill that they did plan to bring before this place; the Prime Minister has ruled it out so far. I'm glad that that's not happening, because that would've been a retrograde step for people of faith and the faith community, particularly religious schools. I'm glad that that's not happening, but I am very disappointed, as are faith groups and faith communities across Australia of all persuasions—not just Christian but Muslim and Jewish—that the government isn't providing the protections through a sensible bill.

Faith leaders came together—again, across the broad spectrum of religious communities. Different faiths came together and made recommendations to the Attorney-General and to the Prime Minister on what could be done to provide those protections. They've put forward a very sensible, workable list, but this government has run away from that. They don't want to have the fight with the left within their party. That's shameful, because a commitment was made before the election to provide people of faith with the protection that is necessary. So I don't have a lot of faith in this government at all when it comes to matters of religious freedom.

Now, the Australian Christian Lobby, in their submission on this bill—and I want to have this recorded in the Hansardmade a very powerful point. They said:

The Bill will have disproportionate, extremely adverse impact on Christian and faith-based schools and educational institutions if, as the Government appears intent upon, the exemptions in the SDA are to be removed, or reduced so they have no value in enabling such institutions to operate in accordance with their ethos.

It would make discrimination law activism virtually cost and risk free for complainants.

I will just interject at that point: who then, therefore, bears the cost? It will, of course, be those organisations. They go on to say:

Australians may be financially ruined for things that should never have been alleged under discrimination legislation in the first place.

…   …   …

The result of the Bill in that context would be that Christian and faith-based schools and the like will become exposed to an entirely new range of discrimination claims under the SDA simply for operating in accordance with their ethos … Christian schools remain a highly popular choice among Australians. The problem is that their ideology does not fit with Labor's current ideology.

The burden of costs and the implications of this bill will be borne, in the instances that I've raised, by those within the faith community, particularly faith based schools. What does that mean? It means their insurance costs will go up. That, in turn, will mean, of course, that the fees that are paid by parents who are making the choice to send their children to that school will also go up. At a time of a cost-of-living crisis, this is the worst decision that could ever be made, on a cost basis. But when it comes to freedoms in this country, it is damaging to have a bill such as this.

This bill takes an entirely different approach, as I said at the start, to that which was recommended in the Jenkins report. Labor have used the recommendations of that report and have decided to add in some of their own formulation when it comes to this bill. Now, it's within their rights; they're the government. But we're belling the cat here. It is outrageous, what they're doing, by extending it and making it much broader and wider. Once again, Labor is targeting people of faith. The cost model proposed in this bill differs from the Australian Human Rights Commission's recommendations. As Senator Paul Scarr, my good friend and colleague, the chair of the committee that looked at this, said:

There is strong evidence that there are issues with the current system that need to be addressed. There is largely consensus in this regard. However, there is no consensus with respect to the costs model which should apply to proceedings commenced under Part IIB, Division 2 of the Australian Human Rights Commission Act1986 …

There are unintended consequence in this bill that the government have not adequately addressed. Therefore, the coalition stands in opposition to this bill because it does not advance protection from discrimination in the way that it should and in fact will increase the number of vexatious claims that are made against people. You can use the processes of the Human Rights Commission to frustrate, to add costs, to add burden to organisations that maybe you've got an ideological opposition to. It is reprehensible, and it is something that should not proceed.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

There are a lot of challenges facing our country right now. It's a pretty tough time for most Australians to just pay for basic things. Going to the supermarket has become a stressful exercise for many as they don't know if they have enough money in the bank. It's also hard for them to stay in their home, with mortgage costs going up—that's for those who are lucky enough to have a home. We've got tent cities popping up around our major cities, as well—something I never thought I'd see in this nation. There are lots of issues. I would think people out there would hope that here in this place we'd be debating something and trying to do something to tackle those issues.

Instead, we've got a bill here, the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, which can only be described as a lawyer's picnic on steroids. It's a massive lawyer's picnic, as other speakers have outlined. I'll go through it myself in some detail. But really, if you gave a lawyer or a large corporate law firm a blank cheque and said, 'Here, write the law for this country,' you wouldn't get far away from this. Effectively, this bill before us today subsidises litigation in this country. Obviously it therefore will incentivise more people to take matters through the courts, and pretty much every time something ends up in the courts there is only one winner. There's a formal winner and a formal loser, but almost always when things end up in the civil courts there is one group of winners, and they're lawyers. They're the ones who win. They laugh all the way to the bank. And one way or another, most of the other people involved end up with a huge bill or, at the very least, if they come out with their shirt, they have a life racked with stress and interruption, and it's never really the same.

I don't know why we would be seeking to introduce legislation that would encourage more and more disputes to go down a legal judicial pathway that's high cost, high stress and highly resource intensive. In a country that is struggling to simply provide other basic services, why would we do that right now? It makes no sense that the government's priorities seem so divorced from the concerns of average Australians, which are clearly about the cost of living, the standard of living, and the availability of basic services like hospitals, housing, basic energy needs et cetera.

But this bill goes way beyond what has been recommended to this place, and there is very little explanation from the government about why it hasn't taken on the recommendation of the Respect@Work report, which has become known as the Jenkins report. That report made a number of recommendations, many of which we've dealt with and which have gone through this place. This is a very important report about standards of behaviour in this place.

Recommendation 25 of this report was to make it easier for people to bring a matter of sexual harassment to the courts. We believe this was an admirable aim. Obviously it was. But we believe it was a sensible recommendation. In brief, that recommendation would reduce the number of times a complainant of sexual harassment matters would be found to have to pay costs. It would restrict the options for a court to impose a cost order on somebody who was bringing a sexual harassment matter through the Federal Court process. Basically, it would mean that, unless it was found that the complainant had acted in a vexatious manner or without a reasonable cause, a cost order couldn't be imposed on that person.

I believe, given the sensitivity of these types of matters and the very personal and difficult way in which people have to bring such complaints, there's a rationale in those limited cases to provide some restriction on cost orders so that people do not feel deterred from bringing serious matters of sexual harassment forward. But this bill goes way beyond that. That is the recommendation of the Jenkins review, and we support it. If the government had brought legislation to implement that recommendation and do that thing, we're very clear that it would have been supported and have gone through this place with very little rancour or wasted time. It's a sensible thing to do.

That's not what this bill does. It doesn't implement recommendation 25. It goes far beyond that recommendation and expands these restrictions on cost orders into matters that go far beyond those of a personal nature, in the case of sexual harassment, to cover all other discrimination issues, potentially including religious discrimination and racial discrimination. It does so in a way that's even more harmful, potentially encouraging excessive litigation in this country. In effect, we've ended up with a recommendation that is not only about these personal and sometimes highly embarrassing matters that are difficult for people to bring forward. It includes a whole lot of other matters which could encourage people to bring forward potentially quite unreasonable matters of religious and racial discrimination. There is always a balance to be had in these matters, because there are some more nefarious groups of people out there who are looking to always accuse people of racism or religious discrimination today. Obviously, where those complaints are substantive, they should be properly handled through the courts, but we shouldn't establish a situation where anybody can be accused of these things and those making the accusations don't have to provide reasonable justification for why they're bringing them through a judicial pathway.

When it does that, to go into the detail, this bill would make it so that a court must award costs to a complainant. If someone complains that someone else has acted in a racially discriminatory way, the costs must be awarded to the complainant, so the accuser has to pay for the complainant if they are successful on one or more grounds. This is one of the biggest issues here. Let's say somebody brought forward a case that had 10 or 15 different accusations of racial discrimination, and the court found in the end that just one of those 15 accusations was successful and upheld. The costs of the entire litigation would be imposed on the accused. The accused would have to pay not only their own costs but also the costs of the complainant as well, even though the complainant has failed to prove 14 of the 15 allegations in that particular case. But that's just a particular case, in any case.

That's totally inconsistent with how our courts deal with these matters at the moment. They look at a decision in the whole context, and if the majority of the accusations were not upheld, it's unlikely a court would order costs against an accused for all the costs. They may have a partial costs order; they may not order any costs at all. This bill takes away that discretion from the courts and puts a ridiculously high standard on people accused. Even if they're very successful in defending the accusations, they still could end up with a massive bill.

The issue with this particular point that has been raised in the Senate committee, without adequate answers, is what happens in the event where the accusations extend beyond just the discriminatory matters that this bill purports to cover? Say somebody had brought complaints under industrial relations law but, in that case, they'd also had a matter of racial or sexual discrimination. If they were successful in the discriminatory issue but unsuccessful in the industrial relations complaints, under this bill and a literal interpretation of the bill as drafted it would mean the court would have to award costs to the complainant for all those matters, even though they were completely unsuccessful on a group of matters—say, on industrial relations—that they had brought. That seems completely out of whack as well. Again, the government hasn't really shown good faith here in answering these legitimate issues that have been raised by many people, including good faith people in the legal fraternity and the judicial fraternity, about these issues in the Senate committee. This is interfering with long-held practices in our courts.

The fundamental issue here, while I'm on this point, is where's the evidence that this is broken? We can absolutely understand the personal nature of complaints in sexual harassment cases and the possible need for some tweaking here to help people bring forward such issues that are very hard for anyone to do. But on these general issues of disputes between people—that obviously get quite heated at times but arise whenever you get humans interacting with each other—where is the evidence that our longstanding court processes about costs orders are broken? There's a decision the judicial courts make about these matters. They consider the judgement as a whole. They consider all the arguments. They consider, even, the potential pre-trial negotiations that occurred and whether or not plaintiffs and defendants were reasonable in their offers or rejections of settlement. They consider all those things and make a considered decision, taking all those factors into account, about who or if anyone should be awarded costs.

This now tilts it all in favour of the complainant. That obviously is a massive blank cheque to big corporate law firms who make money off running court cases. That's what they're in the business of doing. Sometimes it's important to take those sorts of cases and defend people who've been wronged in life but obviously there is an element of that community that takes that to extremes, and we end up with a society crushed under excessive litigation where a lot of people get hurt—except for the lawyers, of course, as I mentioned.

Going back to the detail, another issue here is that the model says that it's very restrictive on when or if costs should be awarded against the plaintiff or the accuser. As I said, the accuser, if they win on one factor, will get all their costs paid. Obviously, they've got an incentive to launch as many actions and issues as they can, because they only have to be successful on one to get everything paid for. In the event that they don't get any of them up, though, it's very rare that they'd get costs awarded against them. That will only happen, under this bill, under limited circumstances, and I will go through those. The court will only be able to issue costs against the complainant, the plaintiff, to the respondent if the complainant:

That's quite a high bar. They'd have to prove there was a vexatious element to the complaint.

… the applicant's unreasonable act or omission caused the other party to incur the costs—

That's a bit vague. Is it just the costs that were incurred as a result of the unreasonable behaviour or all of the costs? The court can award costs if the respondent is successful in the proceedings; they have to be successful, obviously, to have this awarded to them. Other aspects are that they do not have a significant power advantage and do not have significant financial or other resources relative to the complainant.

Again, this seems to be an incitement to take action against people and companies that happen to be well-to-do. The Labor Party probably doesn't worry about that: 'Oh yeah, let them go. They're big businesses; they are rich people. Make them go through the courts.' But there's got to be an element of justice in our society. I thought that in our system, when you go into the courts, Lady Justice is blind—right? The scales are there, and there's a blindfold. It's probably a goddess or something; I'm not a lawyer, so I don't know the ancient mythology behind it. But she's blind, because we think justice is blind. It doesn't matter whether you're rich or poor or what colour your skin is; we all have the same rights in that court, as citizens of this country. And as a citizen of Australia you have a right to defend yourself, a right to being presumed innocent before being proven guilty, a right to representation and a right to be treated fairly in the court.

But this sets up a situation where the sort of justice you have depends on your financial circumstances. Again, there are some elements of this in this chamber: 'Oh, well; you're rich. Too bad.' I don't like that. I don't like setting our country up against each other like that. We're all Australian citizens and we all deserve the protections of the law. It's one of the fundamental bedrocks of our democracy, of our longstanding traditions of treating everybody equally. But this bill completely tosses that out in what, as I said at the start of my contribution, seems to be the provision of a blank cheque to big corporate law firms by the Labor Party, who are having no regard to our histories and traditions but are simply trying to benefit their political mates in that sector.

I don't think this bill has a leg to stand on in any credible or logical fashion. I'd implore the government to go back to consider the recommendations of a report that's been accepted by all parties in this place and drop this blatant attempt to tilt the scales of justice against some Australians in favour of others—mainly those who happen to have a law degree and who make their money from launching litigations.

Slade Brockman (WA, Liberal Party) Share this | Link to 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.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

There are 30 seconds to go before we get to two-minute statements, so with the concurrence of the Senate we'll move straight into two-minute statements.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

I have a contribution to make on the Australian Human Rights Commission (Costs Protection) Bill 2023, and it will be a very important contribution because it's a very important bill. I understand that time is of the essence. My understanding is that I will be in continuation.

Debate interrupted.

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

It being 1.30 pm, we will now be proceeding to two-minute statements. You will be in continuation.