Review into an appropriate cost model for Commonwealth anti-discrimination laws

Overview

The Respect@Work: Sexual Harassment National Inquiry Report (2020) (Respect@Work Report) found that sexual harassment is a pervasive and widespread issue in Australian workplaces. It made 55 recommendations addressed to the Australian Government, states and territories, employers and industry groups to prevent and address sexual harassment in Australian workplaces.

The recommendations relate to 5 key areas of focus:

• data and research
• primary prevention
• workplace prevention and response
• support and advocacy
• legal and regulatory reform.

The government is committed to completing the implementation of all Respect@Work Report recommendations as a matter of priority. There has been significant progress, including the passage of the Anti-Discrimination Legislation Amendment (Respect at Work) Act 2022, the release of key resources on the Respect@Work website and further funding provided through the 2022–23 October Budget.

The remaining recommendation that requires Commonwealth legislative action is recommendation 25, concerning a costs protection provision for discrimination matters that proceed to court. The Respect@Work Report heard that the risk of an adverse cost order acts as a disincentive to applicants considering pursuing their matters under the Sex Discrimination Act 1984 in the federal courts. The Australian Human Rights Commission expressed its concern that this risk may deter applicants from initiating court proceedings and presents access to justice concerns, particularly for vulnerable members of the community.

While the Respect@Work Report was 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.

Recommendation 25 of the Respect@Work Report recommended that a costs protection provision, consistent with section 570 of the Fair Work Act 2009 (a 'hard costs neutrality' model), be introduced to the Australian Human Rights Commission Act 1986. However, in its later publication Free and Equal: A reform agenda for federal discrimination laws (December 2021), the Australian Human Rights Commission recommended a different model – a 'soft costs neutrality' model, based on a similar model adopted in the exposure draft of the Human Rights and Anti-Discrimination Bill 2012.

Why we are consulting

This consultation process aims to determine the most appropriate costs protection model for Commonwealth anti-discrimination matters that proceed to court.

• Discussion paper: Review into an appropriate cost model for Commonwealth anti-discrimination laws [PDF 500KB]
• Discussion paper: Review into an appropriate cost model for Commonwealth anti-discrimination laws [DOCX 150KB]

If you require these documents in a different accessible format please email humanrights@ag.gov.au.

The Anti-Discrimination Legislation Amendment (Respect at Work) Bill 2022, introduced to the Parliament on 27 September 2022, originally contained a 'soft costs neutrality' model. This part of the Bill was removed while the Bill was before the Senate in response to concerns raised by community legal sector representatives, legal professionals and others. The government subsequently referred the issue of an appropriate costs model in discrimination proceedings to us for review. This was in recognition of the concerns raised by stakeholders in relation to the model put forward in the Bill and the lack of consensus on the most appropriate costs model.

The costs associated with litigation required to assert an individual's rights under discrimination law have long been reported as a disincentive to individuals pursuing such litigation.

In relation to sexual harassment in particular, the Respect@Work Report heard that the risk of an adverse costs order acts as a disincentive to applicants who are considering pursuing their matters under the Sex Discrimination Act in the federal courts. The report noted the current practice, in which costs generally follow the event, means that applicants may be liable for the costs of both parties if they are unsuccessful. The Australian Human Rights Commission expressed its concern that this risk may deter applicants from initiating court proceedings and presents access to justice concerns, particularly for vulnerable members of the community.

Legislating for a specific costs model applicable to discrimination proceedings would be a significant reform. It would provide certainty to all parties to discrimination matters at the outset of any matter as to how costs will be awarded with the aim of increasing access to justice.

The costs model to be implemented at the conclusion of this consultation process would apply to discrimination proceedings initiated under Commonwealth anti-discrimination law that are before the Federal Court of Australia and the Federal Circuit and Family Court of Australia. The costs model would apply to all Commonwealth anti-discrimination laws – not just the Sex Discrimination Act, and not just those relating to sexual or sex-based harassment in the workplace.

Who we want to hear from

We invite individuals and organisations to provide submissions based on the issues covered in the consultation paper.