Chapter 1 - Introduction

Chapter 1Introduction

1.1On 30 November 2023, the Senate referred the provisions of the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 9 February 2024.[1]

1.2The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills.[2] Appendix 2 to that report suggested that an inquiry into the bill was necessary '[t]o carefully scrutinise this legislation and understand any impacts it has on employers'.[3]

Conduct of the inquiry

1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to relevant organisations and individuals inviting submissions by 9 January 2024. The committee received 35 submissions, which are listed at Appendix 1. The committee held a public hearing in Canberra on 31January 2024. A list of witnesses is provided at Appendix 2.

1.4Submissions and the Hansard transcript of evidence may be accessed through the committee’s website. Answers to questions on notice and other material received by the committee is also available on the website.

1.5The committee thanks the organisations and individuals who made written submissions and those who gave evidence at the public hearing.

Structure of the report

1.6The report comprises two chapters as follows:

Chapter 1 outlines the administrative details of the inquiry, background to the inquiry, and the key provisions of the bill; and

Chapter 2 examines key issues raised by submitters and witnesses. It also sets out the committee’s views and recommendations in relation to the bill.

Purpose of the bill

1.7The bill would amend the Australian Human Rights Commission Act 1986 (AHRCAct) to insert an ‘equal access’ costs protection provision that would apply to all unlawful discrimination proceedings commenced in the FederalCircuit and Family Court of Australia (FCFCOA) and the Federal Court (collectively the federal courts). The amendment would implement recommendation 25 of the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work report).[4]

Recommendation 25

Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth).[5]

Background

The Respect@Work report

1.8On 20 June 2018, the Commonwealth government announced that it would contribute funding to the Australian Human Rights Commission (AHRC) to inquire into sexual harassment in Australian workplaces.[6]

1.9On 5 March 2020, the AHRC released the Respect@Work report.[7] That report:

…made 55 recommendations addressed to the Government, states and territories, employers and industry groups to prevent and address sexual harassment in Australian workplaces. The recommendations related to five key areas of focus: data and research, primary prevention, workplace prevention and response, support and advocacy, and legal and regulatory reform.[8]

1.10Of the 55 recommendations, 13 required legislative reform.[9] With the passage of the following legislation, all but one of those recommendations have been implemented:

Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, which commenced on 11 September 2021;

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, which commenced on 13 December 2022; and

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which commenced on 7 December 2022.[10]

1.11Recommendation 25 of the Respect@Work report is the only unaddressed recommendation that requires legislative reform.[11] The AHRC received evidence that indicated that the risk of incurring costs orders ‘operates as a disincentive to pursuing sexual harassment matters under the [SexDiscrimination Act 1984]’.[12]

1.12To address its concerns related to that evidence, the AHRC recommended that the AHRC Act ‘be amended to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 [Fair Work Act]’.[13] Section 570 of the FairWork Act stipulates that an individual may only be ordered to pay costs if they ‘instituted the proceedings vexatiously or without reasonable cause; or…[their] unreasonable act or omission caused the other party to incur the costs’.[14]

1.13The Attorney-General’s Department (AGD) highlighted:

While the Respect@Work Report was particularly concerned with the risk of an adverse cost order acting as a deterrent to applicants bringing complaints under the Sex Discrimination Act in the federal courts, the costs model that would be introduced to implement recommendation 25 would apply to all complaints of discrimination under Commonwealth anti-discrimination law, across all protected attributes and all areas of public life covered by those laws—not just employment-related discrimination complaints, and not just complaints made under the Sex Discrimination Act.[15]

Costs protection models

1.14A costs order ‘sets out which party must pay the legal costs associated with proceedings, which is generally regulated by legislation and by court rules’.[16] The federal courts generally make costs orders ‘according to the guiding principle that ‘costs follow the event’. Under this principle, an unsuccessful party to litigation is ordinarily ordered to pay the costs of the successful party’.[17]

1.15The costs protection model outlined in the Respect@Work report is referred to as the ‘hard cost neutrality model’.[18] After the release of that report, the AHRC ‘updated its position to recommend a ‘soft cost neutrality’ model’.[19] In 2021, the AHRC suggested ‘that the default position should be that parties bear their own costs, as contained in the Human Rights and Anti-Discrimination Bill 2012, with the court retaining a discretion to award costs in the interests of justice’.[20]

1.16The ‘soft cost neutrality model’ was included in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work bill).[21] Under that model, each party to a complaint would bear their own costs unless the court believed there were grounds to depart from that position.[22] The Respect at Work bill included a list of matters that the court must consider when deciding whether to make a costs order.[23]

1.17The AHRC indicated that there are circumstances in which courts should be able to award costs:

Frivolous or vexatious complaints, or some defence strategies, for example, impose unnecessary costs on other parties and the court system, and might need to be discouraged by the prospect of costs being awarded in such cases.[24]

1.18On 28 September 2022, the provisions of the Respect at Work bill were referred to this committee for inquiry and report.[25] In its report, the committee observed that there were differing views from stakeholders on the cost provisions included in proposed section 46PSA of that bill:

Several stakeholders supported the provision on the basis that cost neutrality would be an improvement on the current approach. However, other stakeholders argued that the proposal does not go far enough and would fail to achieve its intended objective.[26]

1.19The committee was of the view that the costs provisions ‘would provide a degree of costs certainty for both parties and allow the courts the flexibility to deal with costs on a case-by-case basis’.[27] The committee recommended that the Australian Law Reform Commission conduct an inquiry into the operation of the costs provisions six to 12 months after passage of the bill.[28]

1.20The government considered the committee’s recommendation and decided to amend the Respect at Work bill ‘to remove the cost protection provisions from the bill’.[29] In its response to the committee’s report, the government stated that it had ‘referred the issue of costs in discrimination proceedings to the Attorney-General’s Department for review’.[30]

1.21In February 2023, the AGD opened consultation on ‘determining an appropriate costs protection model for Commonwealth anti-discrimination matters that proceed to court’.[31] That consultation was undertaken from 23 February 2023 to 14 April 2023.[32]

1.22The AGD reported that the consultation process made it ‘clear that stakeholders broadly agreed that reform is necessary, but there was no consensus on what model that reform should take’.[33]

1.23The AGD reinforced the view of the AHRC that the lack of costs protection disincentivises potential applicants from pursuing judicial intervention:

The current framework of broad judicial discretion does not provide applicants and respondents in discrimination matters at the federal level with sufficient certainty as to how costs will be awarded. The risk of an adverse costs order is significant for parties and operates as a clear disincentive to pursuing litigation. In the absence of clear legislative provision to provide this certainty, neither the judiciary nor the legal profession (responsible for representing applicants) are using the existing discretion in a way that would overcome this uncertainty and disincentive. The costs risk associated with litigation therefore continues to represent a significant barrier to applicants.[34]

1.24The AGD noted that there are no specific provisions that guide ‘how costs are awarded in discrimination matters before a federal court’.[35] Currently, it is at the ‘broad discretion [of the courts] to award costs as they see fit’.[36]

1.25It also noted that while federal courts most commonly make no costs orders (meaning that parties bear their own costs), ‘the number of costs orders made against applicants has increased over time, and costs orders are made less frequently against respondents’.[37]

1.26The AGD consultation paper listed the following costs models and invited stakeholders to propose other options:

the option originally recommended by the Respect@Work Report, which is a model based on section 570 of the Fair Work Act (‘hard cost neutrality);

the option put forward in the Respect at Work Bill 2022 (‘soft cost neutrality’);

an asymmetrical cost model [‘equal access’]; and

a hybrid or applicant opt-in model.[38]

1.27The Law Council of Australia (Law Council) proposed a fifth model, the broad-discretion model.[39]

Hard cost neutrality

1.28Under the hard cost neutrality model, ‘each party to a proceeding bears their own costs, except where either party has acted vexatiously or unreasonably’.[40] This model is based on section 570 of the Fair Work Act and:

…provides that costs may only be ordered against a party if the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause, or if the court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs.[41]

1.29The AGD stated:

…the threshold for what is considered ‘vexatious’ is generally quite high. This means matters can proceed to court and incur costs even where they have been terminated by the President of the [AHRC] on the grounds that they are vexatious or unmeritorious.[42]

1.30In its assessment of the advantages and disadvantages of the hard cost neutrality model, the AGD suggested:

that it would provide greater costs certainty for both parties to a proceeding;

that it ‘may encourage more public interest pro bono litigation’;

legal representatives acting for both parties are unlikely to be able to recoup their costs, which ‘is likely to create issues for applicants (and respondents) securing legal representation’;

that it ‘may increase the risk of unmeritorious discrimination complaints that are not vexatious, but nonetheless lack substance…proceeding to court’; and

that it ‘may also be vulnerable to well-resourced litigants engaging in delay tactics, incurring increasing costs in order to limit the other party’s ability to continue with the proceedings’.[43]

1.31In its consideration of the hard cost neutrality model, the AGD concluded:

Overall, this model may continue to deter applicants (particularly those who are not well-resourced) from proceeding to court with their matter, unless they are being provided legal assistance or supported on a purely pro bono basis.[44]

1.32The AGD also noted that stakeholders expressed concerns ‘that the ‘hard cost neutrality’ model is not appropriate for the anti-discrimination law context’.[45]

Soft cost neutrality

1.33Under the soft cost neutrality model, ‘parties would bear their own costs, but the courts would retain a broader discretion to award costs in the interests of justice having regard to certain mandatory (but non-exhaustive) criteria’.[46] The AGD suggested that ‘criteria could include, for example, the financial circumstances of each of the parties to the proceedings and whether any party has been wholly unsuccessful in the proceedings’.[47]

1.34The AGD explained:

The role of the criteria under this cost model is to direct the court to consider a range of things that are particularly relevant to discrimination matter (such as any power imbalance between parties and the public importance of individuals being able to enforce their right to be free from discrimination), as well as broader considerations around access to justice, fairness and litigation procedure generally. Giving the courts this broad discretion, while pointing to criteria that should be central to their consideration, enables the court to balance and weigh competing interests before deciding how costs should be awarded.[48]

1.35The AGD submitted that the main difference between the hard cost neutrality and the soft cost neutrality models is the broader scope for the court to exercise its discretion under the soft cost neutrality model.[49]

1.36Some stakeholders in the AGD consultation process indicated ‘that the ‘soft cost neutrality’ model would not provide sufficient certainty for applicants due to the court’s broad discretion to award costs in the interests of justice’.[50]Stakeholders also suggested that the ‘model could impact applicants’ access to legal representation…which could create further barriers to justice for some victimsurvivors who rely on no-win no-fee legal representation’.[51]

1.37In its assessment of the advantages and disadvantages of the soft cost neutrality model, the AGD suggested:

that there would be a level of certainty for parties to a proceeding about the costs they would be required to pay, ‘but less certainty than a hard cost neutrality model’;

that it ‘would have similar disadvantages in relation to the ability of parties to secure legal representation as the hard cost neutrality model’;

that it ‘would pose less of a risk than the hard cost neutrality model in terms of encouraging litigation strategies designed to frustrate the ability for a party to continue with court proceedings’;

that it would provide parties to proceedings with greater scope to recover costs than the hard costs neutrality model, but ‘would still present disadvantages in terms of parties’ ability to secure legal representation when compared to the status quo’; and

stakeholders have argued that the soft costs neutrality model would be unlikely to overcome the barriers that applicants face when considering launching a discrimination claim.[52]

Equal access

1.38The equal access model would not require an unsuccessful applicant:

…to pay the respondent’s costs except in certain limited circumstances (where the applicant had acted vexatiously or unreasonably in commencing the proceedings or in the way they conducted themselves during proceedings). Where an applicant is successful, the respondent would be liable for the applicant’s costs.[53]

1.39The AGD suggested that the equal access ‘model is weighted more in favour of applicants and overcoming barriers to them proceeding to court’.[54] To that end, ‘it seeks to level the playing field for applicants’.[55]

1.40The AGD reported ‘[t]he majority of victim-survivor representative organisations, legal professionals, employee representatives, human rights advocates and academics…supported an equal access model’.[56]

1.41It its assessment of the advantages and disadvantages of the equal access model, the AGD suggested:

that it would mitigate ‘the risk of an adverse cost order almost entirely’;

there would be an increased risk of adverse costs orders for respondents;

applicants would be in a better position to secure legal representation under an equal access model; and

respondents would be in a weaker position to secure legal representation as they ‘would not be able to recover their legal fees even if successful’.[57]

1.42The AGD concluded that the equal access:

…model may encourage more discrimination matters of public interest and value to be brought before the courts for judicial consideration, given applicants would face less financial risk and disincentive from doing so. Conversely, this model may encourage more unmeritorious complaints, given the financial risk and disincentive would shift primarily to respondents. And while this may be appropriate in some cases, where respondents are well-resourced corporate entities and at a significant power disparity over an applicant, many respondents do not fit this profile and would be at a significant disadvantage under this model.[58]

Applicant choice model

1.43The applicant choice model would present the applicant with two choices at the beginning of court proceedings as to how costs would be resolved:

The applicant could choose either a ‘costs follow the event’ model (whereby the unsuccessful party has costs awarded against them) or a hard cost neutrality model (where each party bears their own costs, unless a party acts unreasonably or vexatiously).[59]

1.44The AGD suggested the applicant choice model ‘would empower applicants to control how costs are settled and provide them with a measure of flexibility based on their circumstances’.[60] While the parties to the proceeding are treated equally in terms of the risk of bearing costs, ‘the respondent would have to accept the model chosen by the applicant’.[61] Applicants would have ‘greater choice, control and flexibility’ under this model, while maintaining the same advantages and disadvantages as the status quo and hard cost neutrality model.[62]

Modified equal access model

1.45The costs model proposed in the bill is described as ‘a modified equal access cost protection provision’.[63] The AGD submitted:

…the Government determined that a modified equal access model would best achieve the objectives of recommendation 25 of the Respect@Work Report, being to address the existing financial and power disparities between most applicants and respondents in unlawful discrimination proceedings, and increase access to justice.[64]

1.46The Explanatory Memorandum (EM) to the bill explains that this model is different to the one recommended by the Respect@Work report.[65] The modified equal access model adds:

…the ability to award costs against an applicant in circumstances where the respondent has been successful on all grounds, the respondent does not have a significant power advantage over the applicant and the respondent does not have significant financial or other resources, relative to the applicant.[66]

1.47According to the EM, that modification ‘achieves the policy objective of recommendation 25 of the Respect@Work Report…[and] balances the interests of applicants and respondents in unlawful discrimination proceedings while not impacting applicants’ access to legal representation’.[67]

1.48The Attorney-General, the Hon Mark Dreyfus KC MP, reported that the government had listened to the concerns raised by multiple stakeholders about the ‘soft cost neutrality model’ proposed by the AHRC.[68] The modified equal access cost protection model was adopted following ‘careful consideration and close and comprehensive consultation with a wide range of organisations and individuals’.[69] Following that consultative process, it is the view of the government that the 'bill would strengthen Australia’s antidiscrimination framework and help achieve its core objective of eliminating all forms of discrimination’.[70]

1.49The Attorney-General suggested that the proposed amendments strike a balance between reducing barriers potential applicants face when deciding whether to launch discrimination proceedings and providing protections for small, less powerful respondents. He stated:

Significantly, this modified equal access model addresses the power imbalances and resource disparities present in most unlawful discrimination proceedings. At the same time, the modifications to the equal access model recognise that not all respondents in unlawful discrimination proceedings are well-resourced or at a power advantage over the applicant, such as some individuals or small businesses.[71]

Broad-discretion model

1.50The Law Council argued that the modified equal access model ‘does not strike an appropriate balance between the interests of applicants and respondents in discrimination cases’.[72] It proposed an alternative, ‘more moderate approach to costs reform’.[73]

1.51Under the broad-discretion model:

…the courts would retain a discretion to award costs as appropriate in the circumstances of each case. However, given the strictness of the usual rule that costs follow the event, this discretion would be guided by legislation to ensure relevant considerations are borne in mind.[74]

1.52The model would retain the general principle:

…that costs follow the event, but the court could make a different costs order (including that the successful respondent pay the unsuccessful applicant’s costs or that there be no order as to costs) if it would be fair to do so, taking into account the following factors:

the financial circumstances of each of the parties to the proceedings and their capacity to obtain legal representation;

whether the proceedings were frivolous or vexatious or misconceived or otherwise had little merit;

the conduct of the parties (including in dealings with the [AHRC] and whether a party’s conduct caused the other party to incur costs unnecessarily);

whether any party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings or the matter the subject of the terminated complaint and, if so, the terms of the offer;

whether the subject matter of the proceedings involves an issue of public importance;

whether any damages award would cover the legal costs of the applicant and/or any adverse costs order; and

any other matters that the court considers relevant.[75]

1.53The Law Council suggested that the broad-discretion model would address the disincentives that applicants experience in deciding to pursue discrimination proceedings:

It would allow arguments to be raised as to a range of relevant factors, including the parties’ resources and conduct. It would give applicants a greater measure of protection than the status quo, while being more consistent with the principle of equality before the law than equal access.[76]

1.54The Law Council suggested the broad-discretion model would achieve recommendation 25 of the Respect@Work report while also providing:

‘an appropriate level of disincentive for unmeritorious claims’;[77]

‘the courts greater guidance to award costs fairly, in recognition of the wide range of factors applicable to many discrimination cases’;[78]

‘some disincentive for applicants to bring claims compared with a modified ‘equal access model’’;[79] and

‘greater capacity for both applicants and respondents to have adequate access to justice and legal representation’.[80]

1.55The AHRC stated that while the broad-discretion model:

…would allow the court to make costs orders in the interests of justice having regard to mandatory relevant considerations…in the Commission’s view, the ‘broad-discretion’ costs model does not shift the approach to costs significantly from the current regime. By retaining the default position that costs follow the event, this model does not address the well-established concerns with the existing approach to costs identified in the Commission’s [Respect@Work report] and its Free and Equal position paper, including the serious disincentive of an applicant’s exposure to the risk of a significant adverse costs order and the burden that applicants currently carry.[81]

Redress for unlawful discrimination under the AHRC Act

1.56The AHRC Act allows one or more people to lodge a written complaint with the AHRC relating to allegations of unlawful discrimination.[82] Any complaint relating to an allegation of unlawful discrimination made to the AHRC must be referred to the President of the AHRC.[83]

1.57The President of the AHRC is required to consider whether to inquire into any complaint referred to him or her.[84] During that consideration, ‘the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion’ on whether to inquire into the complaint.[85] After considering that information, the President may ‘terminate the complaint without inquiry’ if he or she is of the opinion that it should be terminated.[86]

1.58If the respondents to the complaint are the AHRC, the President of the AHRC, or a Commissioner of the AHRC, the President may terminate the complaint if he or she receives a written request from any complainant seeking termination of the complaint.[87] The President must be ‘satisfied that all the affected persons agree to the termination’ before the complaint is terminated.[88]

1.59The President of the AHRC has the discretion to terminate a complaint on several defined grounds.[89] The President is required to terminate a complaint if he or she ‘is satisfied that the complaint is trivial, vexatious, misconceived or lacking in substance; or there is no reasonable prospect of the matter being settled by conciliation’.[90] The President must also terminate a complaint if he or she ‘is satisfied that there would be no reasonable prospect that the [federalcourts] would be satisfied that the alleged acts, omissions or practices are unlawful discrimination’.[91]

1.60If the President of the AHRC terminates a complaint, he or she must provide written notice of that decision to the complainant outlining the reasons for it.[92]

1.61A complainant may make an application to the federal courts alleging unlawful discrimination by any of the respondents if their complaint is terminated for any of the reasons outlined in paragraphs 1.57–1.59.[93] That application must be made within 60 days of the issue of the written notice described in paragraph 1.60, or within any additional time that the court allows.[94]

1.62If the federal courts institute proceedings as a result of such an application and a settlement offer made by the applicant or the respondent is rejected, ‘the court, or a judge of the court, in deciding whether to award costs in the proceedings, may have regard to the offer’.[95]

1.63The existing costs provisions of the AHRC Act allow the federal courts, or a judge of those courts, to consider rejected settlement offers when deciding whether to award costs in unlawful discrimination proceedings.[96] Those provisions would be repealed by the bill.[97] The AGD pointed out ‘there is nothing preventing the court’s consideration of offers to settle, and under subsection 46PKA(2), things said in conciliation remain admissible in the consideration of costs’.[98]

Introduction of the bill

1.64In introducing the bill, the Attorney-General stated that it ‘represents the final legislative reform required to fulfil the Albanese government’s commitment to implement the recommendations of the Respect@Work report’.[99]

1.65The Attorney-General highlighted the importance of the bill to ensuring that victim-survivors are not deterred from pursuing justice for unlawful discrimination. He argued:

…that for victim-survivors, the risk of an adverse order for costs is a significant barrier to accessing justice in federal unlawful discrimination court proceedings. Victim-survivors should not be deterred from commencing or running legal proceedings by the risk of an adverse cost order.[100]

1.66The EM explains that the bill would ‘provide greater certainty regarding costs to all parties involved in [federal unlawful discrimination court proceedings]’.[101]

1.67He pointed out that ‘an adverse cost order can also magnify existing financial and power disparities between an individual applicant and certain respondents, such as large corporations or well-resourced individuals’.[102]

Key provisions of the bill

1.68The bill would repeal the existing costs provisions in the AHRC Act and replace them with ‘equal access’ costs protection provisions that would apply to all unlawful discrimination proceedings commenced in the federal courts.

1.69The main amendment proposed by the bill would apply to proceedings before the federal courts that relate to an application made by an applicant after their initial complaint of alleged unlawful discrimination is terminated by the President of the AHRC.[103] The amendment would also apply to ‘appeals pursued in the High Court’.[104]

1.70The EM notes that ‘the cost provision would apply to all unlawful discrimination matters that proceed to court—not just sexual harassment matters, and not just matters relevant to the [Sex Discrimination Act 1984]’.[105]

1.71If the court rules that ‘the applicant is successful in proceedings on one or more grounds, the court must order each respondent against whom the applicant is successful to pay the applicant’s costs’.[106]

1.72The EM maintains that this provision of the bill would grant the court ‘discretion to apportion costs as it sees fit. This may include orders allocating some or all of the costs to the applicant depending on the circumstances of the case’.[107]

1.73If the court is of the view that an ‘applicant’s unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission’.[108]

1.74According to the EM, those acts or omissions could include situations ‘where the applicant has unreasonably caused unnecessary delays in proceedings, failed to comply with court orders and rules, or otherwise abused the processes of the court’.[109] The EM notes that ‘[t]his is intended to be a high threshold and reserved for rare cases’.[110]

1.75It lists several examples of acts or omissions that are not intended to be considered unreasonable:

For example, a mere refusal of a settlement offer, refusal to participate in a conciliation, the running of novel arguments or a self-represented litigant’s lack of legal expertise are not intended to amount to an unreasonable act or omission.[111]

1.76The court must not order the applicant to pay the costs of any party to the proceedings, except in limited circumstances.[112] The court may order the applicant to pay costs if:

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

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

(c)all of the following apply:

(i)the other party is a respondent who was successful in the proceedings;

(ii)the respondent does not have a significant power advantage over the applicant;

(iii)the respondent does not have significant financial or other resources relative to the applicant.[113]

1.77In relation to the term ‘power advantage’, the EM explains that it ‘is intended to be broad and include consideration of historically unequal power relations as well as social and cultural power imbalances and organisational power imbalances’.[114] It suggests:

For example, a senior, older or longstanding employee may have a significant power advantage over a junior, younger or new employee. Other factors such as a hierarchical workplace culture or industry and the employer’s conditions of employment can also be relevant.[115]

1.78The EM points out that consideration was given to these kinds of interpersonal relationships in the drafting of the bill ‘to reflect that the resource and power disparities between applicants and respondents in unlawful discrimination matters are not limited to financial resources, but instead can reflect structural inequalities’.[116]

1.79In cases where a representative acts on behalf of the applicant and the court makes a costs order, that order can only be made against the representative and not the individual or individuals on whose behalf the application is made.[117] The EM notes that upon making a representative application, ‘the representative body is accepting the risks associated with pursuing discrimination complaints in court’.[118] It explains that this provision ‘may also encourage public interest litigation in unlawful discrimination matters’.[119]

Consideration by other parliamentary committees

1.80When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).

1.81The Scrutiny Committee and the PJCHR reported that they have no comments on the bill.[120]

Note on references

1.82In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between the proof and official transcripts.

Footnotes

[1]Journals of the Senate, No. 90, 30 November 2023, pp. 2522–2525.

[2]Senate Standing Committee for the Selection of Bills, Report No. 15 of 2023, p. 1.

[3]Senate Standing Committee for the Selection of Bills, Report No. 15 of 2023, Appendix 2, p. 3.

[4]Australian Human Rights Commission (AHRC), Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces(Respect@Work report), 2020.

[5]AHRC, Respect@Work report, 2020, p. 45.

[6]The Hon Kelly O’Dwyer MP, Minister for Women, ‘National inquiry into workplace sexual harassment’, Media release, 20 June 2018.

[7]AHRC, Respect@Work: Sexual Harassment National Inquiry Report (2020), 5 March 2020, www.humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020 (accessed 4 December 2023).

[12]AHRC, Respect@Work report, 2020, p. 507.

[13]AHRC, Respect@Work report, 2020, p. 507.

[14]Fair Work Act 2009, ss. 570(2).

[16]Leah Ferris, Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, Bills Digest No. 33, 2023-24, Parliamentary Library, Canberra, 2023, p. 3.

[17]AHRC, Free and Equal: A reform agenda for federal discrimination laws, 2021, p. 191. Note: the FederalCourt acknowledged that ‘[t]he amounts involved can be many thousands of dollars, sometimes tens of thousands’ see, Federal Court of Australia, Legal Costs, www.fedcourt.gov.au/going-to-court/i-am-a-party/court-processes/legal-costs (accessed4December 2023).

[19]AGD, Submission 24, p. 5.

[21]Schedule 5 of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work bill).

[22]Proposed section 46PSA of the Respect at Work bill.

[23]Proposed subsection 46PSA(3) of the Respect at Work bill.

[25]Journals of the Senate, No. 15, 28 September 2022, pp. 376–377.

[26]Senate Standing Committee on Legal and Constitutional Affairs Legislation Committee (the committee), AntiDiscrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 [Provisions], November 2022, p. 32.

[27]The committee, AntiDiscrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 [Provisions], November 2022, p. 39.

[28]The committee, AntiDiscrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 [Provisions], November 2022, p. 39.

[29]Australian Government, Response to the Senate Legal and Constitutional Affairs Legislation Committee Report: Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 [Provisions], January 2023, p. 2.

[30]Australian Government, Response to the Senate Legal and Constitutional Affairs Legislation Committee Report: Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 [Provisions], January 2023, p. 2.

[32]AGD, Review into an appropriate cost model for Commonwealth anti-discrimination laws, 23February2023, https://consultations.ag.gov.au/rights-and-protections/cost-model-anti-discrimination-laws/ (accessed 4 December 2023).

[33]AGD, Submission 24, p. 6.

[37]AGD, Consultation paper: Review into an appropriate cost model for Commonwealth anti-discrimination laws, February 2023, p. 10. Note: AGD quoted research from the Australian National University that found that ‘since 2001, applicants have been ordered to pay the respondent’s costs in 56% of cases where the applicant was unsuccessful and sometimes even when the applicant was successful’.

[39]Law Council of Australia (Law Council), Submission 33, p. 20.

[40]AGD, Submission 24, p. 6.

[41]AGD, Submission 24, pp. 6–7.

[45]AGD, Submission 24, p. 5.

[46]AGD, Submission 24, p. 7.

[47]AGD, Submission 24, p. 7.

[49]AGD, Submission 24, p. 7.

[50]AGD, Submission 24, p. 6.

[51]AGD, Submission 24, p. 6.

[53]AGD, Submission 24, p. 7.

[56]AGD, Submission 24, p. 6.

[63]The Explanatory Memorandum to the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (EM), p. 3.

[64]AGD, Submission 24, p. 8.

[65]EM, p. 3.

[66]EM, p. 3.

[67]EM, p. 3.

[68]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 12.

[69]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 12.

[70]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 13.

[71]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 13.

[72]Law Council, Submission 33, p. 20.

[73]Law Council, Submission 33, p. 20.

[74]Law Council, Submission 33, p. 20.

[75]Law Council, Submission 33, pp. 20–21.

[76]Law Council, Submission 33, p. 20.

[77]Law Council, Submission 33, p. 21.

[78]Law Council, Submission 33, p. 21.

[79]Law Council, Submission 33, p. 21.

[80]Law Council, Submission 33, p. 21.

[81]AHRC, Answers to spoken questions on notice, 31 January 2024 (received 6 February 2024).

[82]AHRC Act, s. 46P.

[83]AHRC Act, s. 46PD.

[84]AHRC Act, para. 46PF(1)(a).

[85]AHRC Act, ss. 46PF(1A).

[86]AHRC Act, para. 46PF(1)(b).

[87]AHRC Act, s. 46PE.

[88]AHRC Act, ss. 46PE(2).

[89]Note: Those grounds are listed in AHRC Act, ss. 46PH(1).

[90]AHRC Act, ss. 46PH(1B).

[91]AHRC Act, ss. 46PH(1C).

[92]AHRC Act, ss. 46PH(2).

[93]AHRC Act, ss. 46PO(1). Note: The alleged unlawful discrimination in the application is required to be the same (or substantively the same) as the alleged unlawful discrimination described in the terminated complaint or have arisen from the same (or substantively the same) ‘acts, omissions or practices’ as the alleged unlawful discrimination described in the terminated complaint. See: AHRCAct, ss. 46PO(3).

[94]AHRC Act, ss. 46PO(2).

[95]AHRC Act, s. 46PSA. Note: Section 43 of the Federal Court of Australia Act 1976 and section 214 of the Federal Circuit and Family Court of Australia Act 2021 allow the federal courts to award costs in proceedings.

[96]AHRC Act, s. 46PSA

[97]AGD, Submission 24, p. 10.

[98]AGD, Submission 24, p. 11.

[99]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 12.

[100]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 12.

[101]EM, p. 3.

[102]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House Hansard, 15November 2023, p. 12.

[103]Proposed subsection 46PSA(1) of the bill.

[104]Proposed subsection 46PSA(1) of the bill; EM, p. 12.

[105]EM, p. 12.

[106]Proposed subsection 46PSA(2) of the bill.

[107]EM, p. 13.

[108]Proposed subsection 46PSA(4) of the bill.

[109]EM, p. 13.

[110]EM, p. 13.

[111]EM, p. 13.

[112]Proposed subsection 46PSA(5) of the bill.

[113]Proposed subsection 46PSA(6) of the bill. Note: The EM explains that ‘the respondent would need to provide evidence of their financial position. This modification to the equal access model has been made to strike the appropriate balance between alleviating barriers to accessing justice for applicants in anti-discrimination proceedings and the burden on respondents’. See: EM, p. 15.

[114]EM, p. 15.

[115]EM, p. 15.

[116]EM, p. 15.

[117]Proposed subsection 46PSA(7) of the bill.

[118]EM, p. 15.

[119]EM, p. 5.

[120]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15/23, 29 November 2023, p. 32; Parliamentary Joint Committee on Human Rights, Report 13/2023, 29 November 2023, p. 1.