7th Nov 2022, 4:27 PM – Representatives Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 - Consideration in Detail - Equal-access approach

The majority voted in favour of disagreeing with amendments introduced by Kooyong MP Monique Ryan (Independent), which means they failed and won't be included in the bill.

What did the amendments do?

Dr Ryan explained that:

The Respect@Work report proposed that costs might be ordered against the applicant only where the court was satisfied that the party instituted the proceedings vexatiously or without cause. That model has not been adopted in this bill. Instead, this bill proposes a cost-neutrality approach in which litigants bear their own costs unless the court orders otherwise. The bill does set out various factors that the court must have regard to in making costs orders. Superficially, the cost-neutral arrangement represents an improvement on the status quo. In effect, however, its design and the uncertainty around its operation will serve to undermine access to justice by limiting the ability of applicants to secure legal representation. Taking a cost-neutrality approach to a relationship characterised by systemic inequality only serves to entrench that inequality.

The amendment I have proposed offers an alternative: an equal-access approach. Under this proposal, each party will bear its own costs, except when the applicant is unsuccessful—that is, when the court has found that the respondent has engaged in discriminatory conduct, in which case the respondent will be liable to pay the applicant's costs, as they should. You should not be excused from bearing costs when you have broken the law. People and organisations found to have engaged in discrimination or harassment in breach of the law should have to pay the legal costs of the applicant. This will act as an incentive to change workplace cultures that permit discriminatory treatment. This should apply not only to sex discrimination cases but also to cases or instances of discrimination on the basis of race, age or physical capacity.

Amendment text

(1) Schedule 5, item 3, page 26 (line 12) to page 27 (line 13), omit section 46PSA, substitute:

46PSA Costs

(1) In proceedings under this Division against a respondent to a terminated complaint, an applicant in the proceedings may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (3).

(2) The court may not make an award of costs against an applicant who conducts the proceedings in a reasonable manner, in respect of any costs which relate to:

(a) the complaint; or

(b) any appeal in respect of the complaint.

(3) The applicant may be ordered to pay:

(a) all, or part of, the costs referred to in subsection (2) if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or

(b) so much of another party's costs that the court is satisfied were incurred as a result of conduct by the applicant in the course of the proceedings which the court determines to be unreasonable.

(2) Schedule 5, item 6, page 27 (lines 24 and 25), omit "if the Court considers that there are circumstances that justify it in doing so", substitute "in certain circumstances".

(3) Schedule 5, item 9, page 28 (lines 8 and 9), omit "if the Court considers that there are circumstances that justify it in doing so", substitute "in certain circumstances".