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Australian Human Rights Commission Amendment (Costs Protection) Bill 2023

The Law Council of Australia provided a submission to the Senate Legal and Constitutional Affairs Legislation Committee (Committee) inquiry into the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (Cth) (Costs Protection Bill).

The Costs Protection Bill is intended to protect applicants in anti-discrimination court proceedings from adverse costs orders when they are unsuccessful. An adverse costs order can have serious financial consequences for unsuccessful applicants who have to pay their own legal costs and the respondents’ costs. In the context of sexual harassment proceedings, the risk of an adverse costs order may discourage an applicant commencing a court proceeding.1

The Australian Human Rights Commission’s (AHRC’s) Respect@Work Report recommended, with respect to sexual harassment in the workplace, that the AHRC Act be amended to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth) (FW Act). Under this provision, applicants and respondents generally bear their own costs. A ‘no-costs’ or ‘cost neutral’ jurisdiction of this type is also reflected in several state and territory anti-discrimination regimes.2

Consultations by both the Law Council and the Attorney-General’s Department have shown little support for a no-costs model to be adopted under federal anti-discrimination law, largely due to the predicted effect it would have on parties’ ability to secure legal representation.

As a result, the Costs Protection Bill proposes to implement an alternative ‘equal-access’ model across all federal anti-discrimination laws3 generally (not only sexual harassment matters), which would protect applicants (but not respondents) from adverse costs orders in most circumstances (including where an applicant’s claim is dismissed).

The Law Council is aware of, and sympathetic to, arguments raised by proponents of the equal-access model, including that applicants are often in a vulnerable position compared with respondents in sexual harassment claims,4 and that the spectre of adverse costs orders can deter the pursuit of legitimate claims.5

Nevertheless, after extensive consultations, and recognising that there is a range of views amongst the legal profession, on balance, the Law Council does not support the measures in the Costs Protection Bill.6

Read full submission below.

1 See Margaret Thornton, Kieran Pender and Madeleine Castles, Damages and Costs in Sexual Harassment Litigation: A Doctrinal, Qualitative and Quantitative Study (Report, 2022).
2 See ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48; Civil and Administrative Tribunal Act 2013 (NSW) s 60; Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 131-132; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, 102; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 57; Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) s 120-121; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109; State Administrative Tribunal Act 2004 (WA) s 87.
3 Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth), through the procedural provisions of the Australian Human Rights Commission Act 1986 (Cth).
4 See eg Beth Gaze and Rosemary Hunter, ‘Access to Justice for Discrimination Complainants: Courts and Legal Representation’ (2009) 32(3) UNSW Law Journal 699.
5 See eg Power to Prevent Coalition Joint Statement, 14 April 2023 – Time for equal access in discrimination claims. 

Last Updated on 14/02/2024

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