Costs Protection Bill 2023

The ACTU welcomes the opportunity to make a submission on the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (the Bill) to the Senate Legal and Constitutional Affairs Committee. The Bill implements the final legislative recommendation arising out of the Respect@Work Report (Recommendation 25).

The Bill is the result of an extensive consultation process undertaken by the Government over the last 12 months, and we commend it on a very thorough and considered process. Costs provisions initially included in the Anti-Discrimination and Human Rights Legislation Amendment (Respect@Work) Bill 2022 (Respect@Work Bill) were removed in response to significant concerns about the proposed ‘soft costs neutrality’ model raised by many, including the community legal sector, legal professionals, unions, academics and others. The matter was subsequently referred by the Government to the Attorney-General’s Department for a review into an appropriate cost model for Commonwealth anti-discrimination laws (the Review), resulting in the publication of the Consultation Paper: Review into an Appropriate Cost Model for Commonwealth Anti-Discrimination Laws (February 2023) (the Consultation Paper). Organisations were invited to make submissions to the Review, which have been published. The Department also held multiple consultation roundtables with a wide range of organisations. Following the consultation process, the Government introduced the Bill to the House of Representatives on 15 November 2023. The costs provisions in the Bill are a significant positive advance on the costs provision initially included in the Respect@Work Bill.

During the consultation process, the equal access model emerged as the model that would best achieve the policy objectives of Recommendation 25 and the Respect@Work Report. It was widely seen as being superior to the soft and hard costs neutrality models that had previously been proposed. The Power to Prevent Coalition (a diverse group of community organisations, unions, academics, peak bodies, health professionals, lawyers and victim-survivors) advocated for this reform, with 85 organisations endorsing a call for an equal accesscosts modelin discrimination and sexual harassment matters. This represents broad support across the sector for this model. Submissions to the Review also demonstrated strongly held and consistent views that an equal access costs model would best achieve the policy objectives of the Respect@Work Report.

The ACTU welcomes and supports the Bill, which implements a modified Equal Access costs model in federal anti-discrimination law in Australia, addressing a key barrier to people pursuing redress for discrimination and sexual harassment. This will mean that individuals who bring claims of discrimination and sexual harassment can recoup their legal costs if they are successful while being protected from having to pay legal costs if they are unsuccessful (except in limited circumstances). Legal costs in these types of cases can easily be in the hundreds of thousands of dollars and can cause severe financial hardship including bankruptcy – a major barrier to people speaking up when they are harmed by discrimination or sexual harassment.

The ACTU further notes our support for the Power to Prevent Coalition’s submission to the Committee regarding this reform, which welcomes the Bill and the adoption of key principles of the Equal Access model.

Importantly, this reform will:

• Remove financial barriers that prevent victims of discrimination and sexual harassment from seeking justice,
• Greatly enhance access to justice for people who have experienced discrimination and harassment,
• Ensure applicants can access legal representation and are able to come forward without the risk of becoming bankrupt or facing significant debt simply for enforcing their rights,
• Lead to more judicial consideration of anti-discrimination laws, send a clear message that this behaviour is unacceptable, and allow damages awards to better reflect community standards,
• Reflect the public interest in holding people to account for discrimination and harassment,
• Overcome the deterrent effect that an adverse costs order poses to applicants, and
• Address the power imbalances and resource disparities present in most unlawful discrimination proceedings.

We have recommendations regarding a few technical matters which we believe would strengthen the Bill further and ensure that its aims are not undermined in practice. The ACTU supports the Bill and we urge the Committee to recommend its passage.

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