Division Description Changes — Bills — Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022; Consideration in Detail — 7th Nov 2022

Change	Division
representatives vote 2022-11-07#7 Edited by mackay staff on 2022-11-11 14:14:38	Title Bills — Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022; Consideration in Detail Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 - Consideration in Detail - Equal-access approach Description ~~<p class="speaker">Monique Ryan</p>~~ ~~<p>by leave—I move amendments (1) to (3), as circulated in my name, together:</p>~~ The majority voted in favour of disagreeing with [amendments](https://www.openaustralia.org.au/debate/?id=2022-11-07.120.1) introduced by Kooyong MP [Monique Ryan](https://theyvoteforyou.org.au/people/representatives/kooyong/monique_ryan) (Independent), which means they failed and won't be included in the bill. ### What did the amendments do? Dr Ryan [explained that](https://www.openaustralia.org.au/debate/?id=2022-11-07.120.1): > 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". <p class="italic">(1) Schedule 5, item 3, page 26 (line 12) to page 27 (line 13), omit section 46PSA, substitute:</p> ~~<p class="italic"> 46PSA Costs</p>~~ <p class="italic">(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).</p> ~~<p class="italic">(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:</p>~~ ~~<p class="italic">(a) the complaint; or</p>~~ ~~<p class="italic">(b) any appeal in respect of the complaint.</p>~~ ~~<p class="italic">(3) The applicant may be ordered to pay:</p>~~ <p class="italic">(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</p> <p class="italic">(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.</p> <p class="italic">(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".</p> <p class="italic">(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".</p> <p>I'm grateful for the opportunity to submit these proposed amendments to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The landmark Jenkins report found that workplace sexual harassment is prevalent and pervasive. It occurs in every industry, in every location and at every level in Australian workplaces. This bill is an important and historic landmark on our path to a fairer, more equitable and safer workplace for all Australians.</p> <p>I applaud the Albanese government for committing to preventing and addressing the consequences of workplace sexual harassment and other forms of discrimination. I also welcome the Attorney-General's comments this morning—that this is just the beginning of a conversation on these matters—and I agree with him that reasonable minds may well differ on their execution. I remain of the belief, however, that the issue of costs provision, as managed in this bill, is problematic, and it's this which is addressed by the proposed amendments.</p> <p>Recommendation 25 of the <i>Respect@Work</i> report clearly articulates the need to ensure that fear of adverse costs orders does not create a barrier to victims-survivors of workplace sexual harassment seeking access to justice. In passing this important legislation, we have to make it easier for victims of workplace sexual harassment to speak out and to receive justice. We must ensure that employers understand their responsibility to protect their workplace and their workforce, and the ramifications of not doing so. The risk of adverse costs orders is clearly a disincentive to applicants considering pursuing sexual harassment matters in the Federal Court.</p> <p>The <i>Respect@Work</i> 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.</p> <p>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.</p> <p>As the government knows, an equal-access model has already been adopted domestically for whistleblowers. In introducing this change to the usual costs rule, the parliament recognised that, at that time:</p> <p class="italic">Legal costs can be prohibitive to any person seeking compensation for damage, and the risk of being ordered to pay the costs of other parties to the proceedings may deter whistleblowers and other victims of victimisation from bringing the matter to court.</p> <p>This reform will increase access to justice. People who've experienced harassment and discrimination will be able to take their cases to court, and discriminatory behaviour will be appropriately penalised. There will be a flow-on impact to workplace culture. Each of the seven recommendations being implemented through this bill is important and long overdue. Combined, they will fundamentally change how acceptance and respect are perceived in our workplace. But I urge the government to accept this proposed amendment to improve the path to representation in the Federal Court.</p> ~~<p class="speaker">Adam Bandt</p>~~ <p>Just briefly, the Greens support this amendment to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I thank the member for Kooyong for moving it. The Greens first raised this issue in the report of the Senate inquiry into this bill. The cost provision is important because this bill now gives people a number of very important rights—rights that we support—and we welcome the passage of this bill. But to have those rights, including the right to be in a workplace free from discrimination and harassment, you must be able to enforce them.</p> <p>Now, the barriers in the way of people enforcing the rights that they have under this bill will often be financial. There are two things that need to be done to remove that barrier. One is to say that you are not going to be exposed to having to pay your employer's costs if you bring a case in good faith and you lose. But the second, in those instances where you bring a case and you're successful, is to have the capacity to have some of the costs recovered. What is very, very clear from the evidence that was submitted to the Senate inquiry during the course of this bill is that in many instances it is only the capacity for someone to recover some of those costs and not to have to bear them out of their own pocket—it's their own costs I'm talking about—that means that people can seek justice and can seek that the law be enforced.</p> <p>The provision that is being put forward is one that says: if you come and bring an action, you will know that, unless you're acting in bad faith or vexatiously, you are not going to be out of pocket and that if you succeed because you've demonstrated that the employer has broken the law—perhaps by providing an unsafe workplace or perhaps by allowing discrimination to happen against you—then you're going to get your costs, or at least a substantial part of them, met. The organisations who have come and given evidence and have signed the open letter today have all made the point very, very clearly that this will often be the only way we will be able to enforce the law.</p> <p>I listened carefully to the Attorney-General's contribution during the summing up debate and I was pleased to hear—if I understood it correctly—that this is something that the government will be giving further consideration to. Because this is an important bill, and one that we welcome, and as the Greens flagged in our Senate report, this must be resolved, moved to amend, in the Senate when the bill comes before the Senate—the rights that are granted to people to be in a workplace free from sexual harassment and discrimination have to be rights that can be enforced. This cost provision is modelled on whistleblower legislation, where similar provisions apply. In many instances it's going to be women who are blowing the whistle on sexual harassment in their workplace, and they have the right not only to be protected from adverse cost orders but to know that if it's demonstrated that the employer has done the wrong thing then their costs are going to be met, all or in part.</p> <p>I thank the Attorney-General for saying during the summing up debate that this is something which is going to be considered as this bill works its way through the Senate. A change to this provision, whether it's along the lines of that proposed by the member for Kooyong or along the lines of what the Greens have proposed in the Senate or along other lines, will actually expand access to justice and ensure that the new rights that are gratefully received in this bill will be able to be enforced.</p> ~~<p class="speaker">Mark Dreyfus</p>~~ <p>As I have said in the summing up on the bill, addressing this question of cost: the cost model in this bill does seek to strike a balance when it comes to discrimination matters generally, not merely sexual harassment matters. I'm pleased that the member for Kooyong is prepared to agree that reasonable minds may differ on whether or not the bill strikes the appropriate balance for costs for all discrimination matters.</p> <p>It is really important to note that the model in the bill, which follows the recommendations of the <i>Respect@Work</i> report, includes a discretion for courts to award costs in the interests of justice. Without wishing to predict the development of jurisprudence in this area, I think that the interests of justice in a particular case, when considered by a court in a sexual harassment matter in an employment context—where, as the member for Kooyong said, it is very likely that in most cases there will be a vast asymmetry of power and economic advantage—and in circumstances where we have a bill which is going to create legislation that directs the court to consider the financial circumstances of each of the parties, whether the subject matter of the proceedings involves an issue of public importance and some other relevant considerations, are where we are likely to see cost orders. I do think that's a very key point.</p> <p>As honourable members have noted in speaking on this amendment, I have said that this is just the start, in the earliest months of this government, a new government, of a conversation about human rights and antidiscrimination in this country. It's a conversation I look forward to continuing to have with all members of this parliament and, indeed, with the whole Australian community. But at this time the government will not be supporting this amendment.</p> ~~<p class="speaker">Milton Dick</p>~~ ~~<p>The question is that the amendments be disagreed to.</p>~~ ~~<p></p>~~ ~~<p></p>~~ ~~<p></p>~~

~~Monique Ryan~~
~~by leave—I move amendments (1) to (3), as circulated in my name, together:~~
The majority voted in favour of *disagreeing* with [amendments](https://www.openaustralia.org.au/debate/?id=2022-11-07.120.1) introduced by Kooyong MP [Monique Ryan](https://theyvoteforyou.org.au/people/representatives/kooyong/monique_ryan) (Independent), which means they failed and won't be included in the bill.
### What did the amendments do?
Dr Ryan [explained that](https://www.openaustralia.org.au/debate/?id=2022-11-07.120.1):
> *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".*
(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".
I'm grateful for the opportunity to submit these proposed amendments to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The landmark Jenkins report found that workplace sexual harassment is prevalent and pervasive. It occurs in every industry, in every location and at every level in Australian workplaces. This bill is an important and historic landmark on our path to a fairer, more equitable and safer workplace for all Australians.
I applaud the Albanese government for committing to preventing and addressing the consequences of workplace sexual harassment and other forms of discrimination. I also welcome the Attorney-General's comments this morning—that this is just the beginning of a conversation on these matters—and I agree with him that reasonable minds may well differ on their execution. I remain of the belief, however, that the issue of costs provision, as managed in this bill, is problematic, and it's this which is addressed by the proposed amendments.
Recommendation 25 of the Respect@Work report clearly articulates the need to ensure that fear of adverse costs orders does not create a barrier to victims-survivors of workplace sexual harassment seeking access to justice. In passing this important legislation, we have to make it easier for victims of workplace sexual harassment to speak out and to receive justice. We must ensure that employers understand their responsibility to protect their workplace and their workforce, and the ramifications of not doing so. The risk of adverse costs orders is clearly a disincentive to applicants considering pursuing sexual harassment matters in the Federal Court.
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.
As the government knows, an equal-access model has already been adopted domestically for whistleblowers. In introducing this change to the usual costs rule, the parliament recognised that, at that time:
Legal costs can be prohibitive to any person seeking compensation for damage, and the risk of being ordered to pay the costs of other parties to the proceedings may deter whistleblowers and other victims of victimisation from bringing the matter to court.
This reform will increase access to justice. People who've experienced harassment and discrimination will be able to take their cases to court, and discriminatory behaviour will be appropriately penalised. There will be a flow-on impact to workplace culture. Each of the seven recommendations being implemented through this bill is important and long overdue. Combined, they will fundamentally change how acceptance and respect are perceived in our workplace. But I urge the government to accept this proposed amendment to improve the path to representation in the Federal Court.
~~Adam Bandt~~
Just briefly, the Greens support this amendment to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I thank the member for Kooyong for moving it. The Greens first raised this issue in the report of the Senate inquiry into this bill. The cost provision is important because this bill now gives people a number of very important rights—rights that we support—and we welcome the passage of this bill. But to have those rights, including the right to be in a workplace free from discrimination and harassment, you must be able to enforce them.
Now, the barriers in the way of people enforcing the rights that they have under this bill will often be financial. There are two things that need to be done to remove that barrier. One is to say that you are not going to be exposed to having to pay your employer's costs if you bring a case in good faith and you lose. But the second, in those instances where you bring a case and you're successful, is to have the capacity to have some of the costs recovered. What is very, very clear from the evidence that was submitted to the Senate inquiry during the course of this bill is that in many instances it is only the capacity for someone to recover some of those costs and not to have to bear them out of their own pocket—it's their own costs I'm talking about—that means that people can seek justice and can seek that the law be enforced.
The provision that is being put forward is one that says: if you come and bring an action, you will know that, unless you're acting in bad faith or vexatiously, you are not going to be out of pocket and that if you succeed because you've demonstrated that the employer has broken the law—perhaps by providing an unsafe workplace or perhaps by allowing discrimination to happen against you—then you're going to get your costs, or at least a substantial part of them, met. The organisations who have come and given evidence and have signed the open letter today have all made the point very, very clearly that this will often be the only way we will be able to enforce the law.
I listened carefully to the Attorney-General's contribution during the summing up debate and I was pleased to hear—if I understood it correctly—that this is something that the government will be giving further consideration to. Because this is an important bill, and one that we welcome, and as the Greens flagged in our Senate report, this must be resolved, moved to amend, in the Senate when the bill comes before the Senate—the rights that are granted to people to be in a workplace free from sexual harassment and discrimination have to be rights that can be enforced. This cost provision is modelled on whistleblower legislation, where similar provisions apply. In many instances it's going to be women who are blowing the whistle on sexual harassment in their workplace, and they have the right not only to be protected from adverse cost orders but to know that if it's demonstrated that the employer has done the wrong thing then their costs are going to be met, all or in part.
I thank the Attorney-General for saying during the summing up debate that this is something which is going to be considered as this bill works its way through the Senate. A change to this provision, whether it's along the lines of that proposed by the member for Kooyong or along the lines of what the Greens have proposed in the Senate or along other lines, will actually expand access to justice and ensure that the new rights that are gratefully received in this bill will be able to be enforced.
~~Mark Dreyfus~~
As I have said in the summing up on the bill, addressing this question of cost: the cost model in this bill does seek to strike a balance when it comes to discrimination matters generally, not merely sexual harassment matters. I'm pleased that the member for Kooyong is prepared to agree that reasonable minds may differ on whether or not the bill strikes the appropriate balance for costs for all discrimination matters.
It is really important to note that the model in the bill, which follows the recommendations of the Respect@Work report, includes a discretion for courts to award costs in the interests of justice. Without wishing to predict the development of jurisprudence in this area, I think that the interests of justice in a particular case, when considered by a court in a sexual harassment matter in an employment context—where, as the member for Kooyong said, it is very likely that in most cases there will be a vast asymmetry of power and economic advantage—and in circumstances where we have a bill which is going to create legislation that directs the court to consider the financial circumstances of each of the parties, whether the subject matter of the proceedings involves an issue of public importance and some other relevant considerations, are where we are likely to see cost orders. I do think that's a very key point.
As honourable members have noted in speaking on this amendment, I have said that this is just the start, in the earliest months of this government, a new government, of a conversation about human rights and antidiscrimination in this country. It's a conversation I look forward to continuing to have with all members of this parliament and, indeed, with the whole Australian community. But at this time the government will not be supporting this amendment.
~~Milton Dick~~
~~The question is that the amendments be disagreed to.~~
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