I thank the member for Wright for that contribution. I’ve spoken on several occasions in this place about the importance of safe workplaces across Australia: in this place for the staff who work here through right through to every workplace across our country. Everyone deserves to have a workplace that they are safe in and that is respectful. And if there is harassment or misconduct or other issues in that workplace, there need to be structures in place so that workers can raise their concerns if they wish to, and those concerns are addressed. This bill takes action on a crucial piece of this puzzle.

The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 will implement recommendation 25 of the Respect@Work report, which is the final remaining recommendation that requires Commonwealth legislative reform. That recommendation was straightforward:

Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act …

The report noted that the inclusion of a provision of this kind should ensure that costs may only be ordered against a party by the court if satisfied that the party instituted the proceedings vexatiously or without reasonable cause. In making this recommendation, the commission expressed its concerns about the negative impact on access to justice—particularly for vulnerable members of the community—that came from the current costs regime that’s associated with pursuing sexual harassment matters. This is supported by parliamentary findings as well. The commission highlighted the work of a 2008 Senate inquiry that acknowledge concerns that people making complaints may be deterred from taking forward claims in the courts because of the risk that they would incur substantial costs for the respondent.

The background to this recommendation comes from the significant body of work that the commission did in preparing its report, including Kate Jenkins, the former Sex Discrimination Commissioner. Ms Jenkins’s time at the AHRC has now concluded, but I think she is still following closely and knows that the reforms that this parliament has seen in the last couple of years are due, in most ways, to the great work she did as Sex Discrimination Commissioner. Her willingness to be ambitious in recommending these necessary and overdue reforms is commendable, and the lives of Australians across our country will be better for it. I am proud that this government has delivered on the recommendations from the Respect@Work report, turning that report and its recommendations into a reality and improving conditions for Australians.

This bill follows work that our government has undertaken from the start of our time in office to deliver on the recommendations of the Respect@Work report. Last year, in the early months of the government, we delivered the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill, which dealt with several matters that came from the Respect@Work report and its recommendations. I said at the time of that bill and I will say again: everyone deserves to feel safe and be safe in their workplace. It doesn’t matter where in Australia you are, what kind of workplace you’re in, the level of experience or seniority you have or how big your workplace is, you should be safe from harassment. There is no justification for harassment or other kinds of behaviour that have no place in Australian workplaces.

We know that too many Australians have experienced workplace harassment—one in three, based on findings from the AHRC. Forty per cent of those are women and 25 per cent are men. In debate on the respect at work bill last year, I spoke about the stories women had shared with me about their experiences of harassment in the workplace. I want to once again thank all those people who shared with me some very difficult stories and experiences and those people who shared their experiences with the AHRC. Your courage in doing that has helped to inform this work and this very important legislative change. To a large degree, these are happening because of the bravery you’ve shown.

One of the issues that have come up time and time again is the difficulty that workers have had in dealing with instances of harassment. The respect at work bill and this bill, together, aim to provide clarity on these issues to avoid more people feeling like they’re lost or stuck in how they respond to workplace harassment. Of course it shouldn’t happen, but when it does happen—let’s be real—we need to have the right response mechanisms in place.

One of the barriers that people identified was the difficulty of the frameworks that were meant to support people but weren’t doing that work. They are hard to navigate. They’re complex. They’re more focused on reacting to the situation than preventing it from occurring in the first place, and that extends to what this bill is trying to deal with—the issue of structures making it seem so much more difficult to get a resolution on an issue and, because it seems so difficult, people giving up without seeking that remedy or resolution. We don’t want people who have experienced sexual harassment facing the prospect of needing to pay the costs of a respondent in that harassment claim. It is a disincentive to people taking claims forward. As this government has already done with previous legislation, we want to remove barriers that in the past have left people stuck, with no way forward, after having experienced sexual harassment in the workplace.

The respect at work report heard that the risk of adverse cost orders acts as a disincentive to applicants considering pursuing sexual harassment matters in the federal courts. In the current practice, costs generally follow the event, even while there is a broad judicial discretion to award cost in any matter as seen fit. That means that applicants may be liable for their own costs as well as those of the other party if they are unsuccessful. The risk of being ordered to pay the cost of other parties to the proceedings can deter victims-survivors of sexual harassment and other forms of discrimination from commencing legal proceedings, and, of course, there is often a power imbalance. Not always but often you have an individual going up against a large corporation with many more resources. So it does create access to justice concerns, particularly for more vulnerable members of our community and people without access to substantial resources. In response to this problem, the Respect@Work report recommended that a cost protection provision be inserted in the Australian Human Rights Commission Act to provide greater certainty for applicants.

I’ve spoken here before about parliament doing this work to improve how workplaces across the country operate as well as to improve how we here in the parliament operate. We must, in many ways, be a model workplace. We haven’t always been in the past, and we’re not there yet, but we are taking some steps to make this workplace a better place as well. That’s why this government has worked to deliver legislative change for Commonwealth parliamentary workplaces to ensure workers here in parliament and in connected workplaces right around Australia have structures in place to prevent harassment and, importantly, to provide support to people when harassment does occur. I want to acknowledge the work of the presiding officers and the relevant ministers for the changes that have happened here. We are on the right track, I think, to become more of that model workplace that we should be and we should aspire to. We’ve done some of the work; There’s more to be done, and I do look forward to continuing to work with colleagues to make that happen.

This bill would amend the Australian Human Rights Commission Act 1986 to insert a modified equal access cost protection provision, which would apply consistently across federal antidiscrimination laws. The reform will alleviate the significant barrier to justice that I’ve explained—that is, the risk of adverse costs being awarded disincentivising people from taking a claim forward. The bill will prevent courts from ordering an applicant to pay the respondent’s costs, except in certain circumstances. If an applicant is unsuccessful on all grounds, parties would generally bear their own costs.

This bill picks up, as I said, on many of the recommendations from the Respect@Work report. The particular circumstances where the court may order that an applicant pay another party’s costs are where it’s satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause, or the applicant’s unreasonable act or omission caused the other party to incur the costs, or where all of the following apply: the other party is a respondent who was successful in the proceedings, 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. If the applicant is successful on one or more grounds, the court must order that the respondent pay the applicant’s cost. However, if the court is satisfied that the applicant’s unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the cost incurred as a result of that act or omission.

As I said earlier, this model addresses the power imbalances and the resource disparities that are present in many unlawful discrimination proceedings. The equal access model has been modified to recognise that not all respondents in unlawful discrimination matters are large corporations or well-resourced individuals. These modifications mean that the equal access approach can be effectively applied across all anti-discrimination laws, without causing unintended consequences for one stream of complaints. These modifications are intended to reduce the burden on successful respondents that are not well resourced and not at a power advantage over the applicant, which could include individual respondents or small businesses. This approach to cost reform does differ from the ‘hard cost neutrality’ model that was recommended in the Respect@Work report and the ‘soft cost neutrality’ model supported by the Australian Human Rights Commission in its 2021 ‘Free and equal’ position paper. There’s a good reason for this, as I’ve just outlined. Where there are these differences in this approach that the government is taking with the bill, it is on the basis of wider consultation that we’ve done and taking into account the work of the Legal and Constitutional Affairs Legislation Committee in the other place. After all that consultation, the government considers that the modified equal access model strikes the appropriate balance between alleviating barriers to accessing justice for victims-survivors and the burden on respondents while not impacting applicants access to legal representation.

The government has engaged with a range of stakeholders as we’ve been doing this work, including the ACTU, legal aid groups, the Australian Industry Group, the Australian Chamber of Commerce and Industry and many others—and, of course, the Australian Human Rights Commission itself. There are a variety of views, but I think that there is broad support for the place on which the government has landed in this reform and for the importance of these reforms.

This bill is a big step forward in our government delivering on those recommendations from the Respect@Work report. It is part of us fulfilling our commitment to making sure we implement those recommendations in full. When our government says we will do something, we do follow through and we make it happen. We are ensuring that all workplaces in Australia can become model environments to support people to work safely and free from harassment. With the changes in this bill, we are ensuring that, if sexual harassment does still occur, there is a pathway through that is clear and does not obstruct people from trying to seek redress. I commend this bill to the House.

Click here to watch this speech.

Scroll to Top