The Costs Protection law will prohibit courts from ordering applicants to foot the legal bills of respondents
Parliament has passed the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, which prohibits courts from issuing orders that applicants foot the legal bills of respondents in discrimination cases before the Federal Court – even if the applicants lose in court.
Courts can only make such orders in exceptional cases. This is the last of the 55 recommendations from the Australian Human Rights Commission’s (AHRC) 2020 Respect@Work report to be executed.
According to the Australian Council of Trade Unions (ACTU), the legislation eliminates a major factor that keeps victim-survivors of workplace sexual harassment from taking legal action against perpetrators.
“Today marks a significant strengthening of rights for people who have been harassed and discriminated against at work. Victim-survivors of workplace sexual harassment now have a fair chance to seek justice without the fear of financial ruin holding them back”, ACTU President Michele O’Neil said. “This Bill sends a clear message: workplace harassment is unacceptable in our workplaces. This is a massive step forward in holding perpetrators accountable and making workplaces safer for everyone”.
The ACTU indicated that the “equal access” costs model is applicable to all Commonwealth sexual harassment and anti-discrimination laws. It is a model already implemented worldwide, including in US federal civil rights and anti-discrimination laws.
The ACTU’s research revealed that just 1 out of 230,000 victim-survivors of workplace sexual harassment bring the matter to court in Australia, deterred by high legal costs that could lead to accruing debt or experiencing bankruptcy.
“This change is especially important for individuals in low-paid and precarious employment, which often translates to lower awards of compensation that are quickly eroded by legal costs in litigation”, National Legal Aid executive director Katherine McKernan said. “Australia still has unacceptably high rates of sexual harassment, and it is important that people who are disadvantaged can access justice if they experience discrimination. It is heartening to see the Government listening to both victim-survivors and those organisations that work with the most disadvantaged to design a system that removes barriers to seeking redress from workplace discrimination and sexual harassment”.
Kingsford Legal Centre director Emma Golledge added that the community legal centres were longtime advocates of this change.
“Today’s change removes a significant barrier and addresses the power imbalance between victim-survivors and their employers – who often have legal teams and large budgets to defend claims”, Victoria Legal Aid special advisor Melanie Schleiger said.
Sex Discrimination Commissioner Dr Anna Cody added that such changes represented progress towards driving a “lasting cultural shift towards equality and respect in every sector”.