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senate vote 2021-09-01#2
Edited by
mackay staff
on
2021-09-03 09:39:42
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Title
Bills — Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; in Committee- Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 - in Committee - Cost protection
Description
<p class="speaker">Larissa Waters</p><p>[by video link]. I might just clarify that in the spirit of collaboration, given that the Greens had amendments drafted to give effect to the full suite of the 55 recommendations of the <i>Respect@Work</i> report but the opposition subsequently had some drafted—I think this has been done procedurally—I'll flag that we will not be moving Greens amendments on sheets 1370, 1368 and 1372. It's not because we don't think those things anymore; it's just because the opposition will be moving amendments to very similar effect, either with tweaks that we support or just in the same form as we were going to anyway. So, for cleanness and consistency, in the eternal hope that the crossbench will support the amendments, we wanted to have a less confusing approach. I seek leave to move Greens amendments (1) to (4) on sheet 1371 revised together.</p><p>Leave granted.</p>- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2021-09-01.47.1) introduced by Queensland Senator [Larissa Waters](https://theyvoteforyou.org.au/people/senate/queensland/larissa_waters) (Greens), which means they failed.
- ### What is the purpose of the amendment?
- Senator Waters [explained that](https://www.openaustralia.org.au/senate/?gid=2021-09-01.47.1):
- > *These amendments pertain to costs and providing cost protections for complainants. As we all know, financial risks are a significant barrier to seeking justice, particularly for workers making complaints. I note that at the Senate inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, rushed though it may have been, the Women's Legal Centre ACT said:*
- >
- >> *We're disappointed that the bill fails to provide a cost protection provision for complainants. Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise many women decide not to take this gamble.*
- >
- > *The recommendation in the [Respect@Work report](https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020) to provide cost protection was justified; it was unequivocal and it was very sensible.*
- ### Amendment text
- The amendment text is available on [sheet 1371](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fs1306_amend_ae56afa3-7346-475c-8631-21d905b06abd%22;rec=0).
<p>I move Greens amendments (1) to (4) on sheet 1371 revised together:</p><p class="italic">(1) Clause 2, page 2 (table item 1), omit the table item, substitute:</p><p class="italic">(2) Schedule 1, page 3 (after line 17), after item 3, insert:</p><p class="italic">3A Subsection 46PO(4) (notes 1 and 2)</p><p class="italic">Repeal the notes.</p><p class="italic">3B Section 46PSA</p><p class="italic">Repeal the section, substitute:</p><p class="italic">46PSA Costs only if proceedings instituted vexatiously etc.</p><p class="italic">(1) A party to proceedings in the Federal Court or the Federal Circuit Court under this Division may be ordered by the court concerned to pay costs incurred by another party to the proceedings only in accordance with subsection (2).</p><p class="italic">(2) The party may be ordered to pay the costs only if:</p><p class="italic">(a) the court concerned is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or</p><p class="italic">(b) the court concerned is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.</p><p class="italic">(3) Schedule 1, page 7 (after line 22), after item 28, insert:</p><p class="italic"> <i>Federal Circuit Court of Australia Act 1999</i></p><p class="italic">28A Subsection 79(1)</p><p class="italic">After "arising under", insert "Division 2 of Part IIB of the <i>Australian Human Rights Commission Act 1986</i>,".</p><p class="italic">28B Subsection 79(1) (note)</p><p class="italic">Before "See section 570", insert "See section 46PSA of the <i>Australian Human Rights Commission Act 1986</i> for proceedings in relation to matters arising under Division 2 of Part IIB of that Act.".</p><p class="italic"> <i>Federal Court of Australia Act 1976</i></p><p class="italic">28C After paragraph 43(1)(a)</p><p class="italic">Insert:</p><p class="italic">(aa) section 46PSA of the <i>Australian Human Rights Commission Act 1986</i>; and</p><p class="italic">(4) Page 23 (after line 11), at the end of the Bill, add:</p><p class="italic">Schedule 2 — Amendments contingent on the Federal Circuit and Family Court of Australia Act 2021</p><p class="italic"> <i>Australian Human Rights Commission Act 1986</i></p><p class="italic">1 Subsection 46PSA(1)</p><p class="italic">Omit "Federal Circuit Court", substitute "Federal Circuit and Family Court of Australia (Division 2)".</p><p class="italic"> <i>Federal Circuit and Family Court of Australia Act 2021</i></p><p class="italic">2 Before subparagraph 214(1)(b)(i)</p><p class="italic">Insert:</p><p class="italic">(ia) Division 2 of Part IIB of the <i>Australian Humssan Rights Commission Act 1986</i>; or</p><p class="italic">3 Subsection 214(1) (after note 1)</p><p class="italic">Insert:</p><p class="italic">Note 1A: Subparagraph (b)(ia)—see section 46PSA of the <i>Australian Human Rights Commission Act 1986</i> for proceedings in relation to matters arising under Division 2 of Part IIB of that Act.</p><p>These amendments pertain to costs and providing cost protections for complainants. As we all know, financial risks are a significant barrier to seeking justice, particularly for workers making complaints. I note that at the Senate inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, rushed though it may have been, the Women's Legal Centre ACT said:</p><p class="italic">We're disappointed that the bill fails to provide a cost protection provision for complainants. Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise many women decide not to take this gamble.</p><p>The recommendation in the <i>Respect@Work</i> report to provide cost protection was justified; it was unequivocal and it was very sensible. The government's response was to say that they would review cost procedures in sexual harassment matters to ensure they're fit for purpose. But as the Human Rights Law Centre's Kieran Pender said:</p><p class="italic">WE DON'T NEED MORE REVIEWS, WE NEED TO MAKE SEXUAL HARASSMENT LITIGATION A VIABLE REMEDY FOR TARGETS OF HARASSMENT. The Respect@Work report offered a simple, technical measure that would materially improve the SDA & the Govt said: 'We'll think about it.</p><p>Well, they've had 17 months to think about it. They've thought for a long time about the positive duty and they are not going to do that either. Frankly, I wish they would just be honest and say that they don't actually care about fixing this issue; they just want to look like they are fixing some of it, because there's an election coming. But, sadly, honesty is too much to ask for in parliament, it seems.</p><p>Anyway, coming back to the substance of this particular amendment, the decision to make a complaint against someone in your workplace will always be difficult, and costs should not be a factor in that difficult decision. Our amendment would prevent costs being awarded, as a matter of course, but it would still leave it open for the commission to make costs orders if they are satisfied that the complaints were frivolous or vexatious. There seems to be a bit of a theme here by the likes of the Pauline Hanson One Nation party that women make this stuff up. Well, the reality is that so many more women who are sexually harassed in their workplace don't make complaints, precisely because they fear that they won't be believed and because they fear they will end up having to pay enormous costs. So they just suck it up, put up with it, or decide to move on and seek other work, and inevitably the harasser continues on to the next person or gets a promotion.</p><p>So that's why we have a whole bevy of amendments to this bill. This one in particular is about cost protection. It's an important amendment and I commend it to the chamber.</p> <p class="speaker">Jenny McAllister</p><p>Labor is supporting this amendment. Indeed, as Senator Waters has indicated, this is also an area where Labor sought to have changes made to the bill. Commissioner Jenkins couldn't have been clearer, when she said in recommendation 25:</p><p class="italic">Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth).</p><p>That's what the amendment does. This recommendation was endorsed by a number of submitters to the minister and to the inquiry, including the ACTU and the Law Council.</p><p>The government's response to the <i>Respect@Work</i> report says that this is agreed in principle. It's typical of the weasel words approach that was adopted in responding to the report. There's a total pretence that all 55 recommendations are accepted. The government accepted this in principle and then went on to explain all the ways in which it actually considers that it is not necessary. This government is so arrogant that it thinks it knows better—knows better than the people that Kate Jenkins spoke to when she conducted this piece of work, which everybody likes to describe as a landmark piece of work, and knows better than the people who submitted to the Senate inquiry that said that costs protection was absolutely critical, so that people weren't frightened of pursuing justice because of bankruptcy. Why this can't be pursued now, immediately, has never been made clear.</p><p>The recommendation and the amendment before us are based on an existing provision in the Fair Work Act. It's not complicated. The government could have drafted this amendment in an hour. But, instead, they are squirming away from it and kicking it into the long grass for a review at some future time. 'Maybe later' is not an answer. It is not an answer for the women who deserve access to justice, who deserve to have their claims heard and who deserve to do so free from fear that they will be financially persecuted and ruined if they dare to raise their voice and dare to seek the protection of the court.</p><p>I ask the government to think about this and to reconsider their position and to consider voting in support of this amendment today to ensure that recommendation 25, sitting there in the report, is implemented.</p> <p class="speaker">Michaelia Cash</p><p>I'll be brief, in the interests of time. The government acknowledges that the courts already have a broad discretion to award costs under their own legislation. This could include, for example, ordering parties to bear their own costs or pay another party's costs. There are mixed views on whether the model recommended by the <i>Respect@Work</i> report and adopted by this proposed amendment based on section 570 of the Fair Work Act will actually address the issues identified with the current model. For example, as part of the consultation process for the <i>Respect@Work</i> report, Victoria Legal Aid outlined their view that this model will still provide a disincentive for applicants, given it would not enable them to recover their costs even if they're successful.</p><p>As outlined in the government's response, the government will review costs procedures in sexual harassment matters to ensure they're fit for purpose, taking into account the issues raised by the report. As I've already articulated, my department does already liaise with the courts in consideration of this matter and it will continue to do so. I have also written to the federal courts to commend the report for their consideration and in particular the impact different cost orders may have on victims of sexual harassment.</p><p class="italic">The CHAIR: The question is that amendments (1) to (4) on sheet 1371 moved by Senator Waters be agreed to.</p>
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