BILLS – Australian Human Rights Commission Amendment (Costs Protection) Bill 2023

There are a lot of challenges facing our country right now. It’s a pretty tough time for most Australians to just pay for basic things. Going to the supermarket has become a stressful exercise for many as they don’t know if they have enough money in the bank. It’s also hard for them to stay in their home, with mortgage costs going up—that’s for those who are lucky enough to have a home. We’ve got tent cities popping up around our major cities, as well—something I never thought I’d see in this nation. There are lots of issues. I would think people out there would hope that here in this place we’d be debating something and trying to do something to tackle those issues. Instead, we’ve got a bill here, the Australian Human Rights Commission Amendment (Costs Protection) Bill
2023, which can only be described as a lawyer’s picnic on steroids. It’s a massive lawyer’s picnic, as other speakers have outlined. I’ll go through it myself in some detail. But really, if you gave a lawyer or a large corporate law firm a blank cheque and said, ‘Here, write the law for this country,’ you wouldn’t get far away from this. Effectively, this bill before us today subsidises litigation in this country. Obviously it therefore will incentivise more people to take matters through the courts, and pretty much every time something ends up in the courts there is only one winner. There’s a formal winner and a formal loser, but almost always when things end up in the civil courts there is one
group of winners, and they’re lawyers. They’re the ones who win. They laugh all the way to the bank. And one way or another, most of the other people involved end up with a huge bill or, at the very least, if they come out with their shirt, they have a life racked with stress and interruption, and it’s never really the same. I don’t know why we would be seeking to introduce legislation that would encourage more and more disputes to go down a legal judicial pathway that’s high cost, high stress and highly resource intensive. In a country that is struggling to simply provide other basic services, why would we do that right now? It makes no sense that the government’s priorities seem so divorced from the concerns of average Australians, which are clearly about the cost of living, the standard of living, and the availability of basic services like hospitals, housing, basic energy needs etcetera. But this bill goes way beyond what has been recommended to this place, and there is very little explanation from the government about why it hasn’t taken on the recommendation of the Respect@Work report, which has become known as the Jenkins report. That report made a number of recommendations, many of which we’ve dealt with and which have gone through this place. This is a very important report about standards of behaviour in this place. Recommendation 25 of this report was to make it easier for people to bring a matter of sexual harassment to the courts. We believe this was an admirable aim. Obviously it was. But we believe it was a sensible recommendation. In brief, that recommendation would reduce the number of times a complainant of sexual harassment matters would be found to have to pay costs. It would restrict the options for a court to impose a cost order on somebody who was bringing a sexual harassment matter through the Federal Court process. Basically, it would mean that, unless it was found that the complainant
had acted in a vexatious manner or without a reasonable cause, a cost order couldn’t be imposed on that person. I believe, given the sensitivity of these types of matters and the very personal and difficult way in which people have to bring such complaints, there’s a rationale in those limited cases to provide some restriction on cost orders so that people do not feel deterred from bringing serious matters of sexual harassment forward. But this bill goes way beyond that. That is the recommendation of the Jenkins review, and we support it. If the government had brought legislation to implement that recommendation and do that thing, we’re very clear that it would have been supported and have gone through this place with very little rancour or wasted time. It’s a sensible thing to do. That’s not what this bill does. It doesn’t implement recommendation 25. It goes far beyond that recommendation and expands these restrictions on cost orders into matters that go far beyond those of a personal nature, in the case of sexual harassment, to cover all other discrimination issues, potentially including religious discrimination and racial discrimination. It does so in a way that’s even more harmful, potentially encouraging excessive litigation in this country. In effect, we’ve ended up with a recommendation that is not only about these personal and sometimes
highly embarrassing matters that are difficult for people to bring forward. It includes a whole lot of other matters which could encourage people to bring forward potentially quite unreasonable matters of religious and racial discrimination. There is always a balance to be had in these matters, because there are some more nefarious groups of people out there who are looking to always accuse people of racism or religious discrimination today. Obviously, where those complaints are substantive, they should be properly handled through the courts, but we shouldn’t establish a situation where anybody can be accused of these things, and those making the accusations don’t have to
provide reasonable justification for why they’re bringing them through a judicial pathway. When it does that, to go into the detail, this bill would make it so that a court must award costs to a complainant. If someone complains that someone else has acted in a racially discriminatory way, the costs must be awarded to the complainant, so the accuser has to pay for the complainant if they are successful on one or more grounds. This is one of the biggest issues here. Let’s say somebody brought forward a case that had 10 or 15 different accusations of racial discrimination, and the court found in the end that just one of those 15 accusations was successful and upheld. The costs of the entire litigation would be imposed on the accused. The accused would have to pay not only their own costs but also the costs of the complainant as well, even though the complainant has failed to prove 14 of the 15 allegations in that particular case. But that’s just a particular case, in any case.
That’s totally inconsistent with how our courts deal with these matters at the moment. They look at a decision in the whole context, and if the majority of the accusations were not upheld, it’s unlikely a court would order costs against an accused for all the costs. They may have a partial costs order; they may not order any costs at all. This bill takes away that discretion from the courts and puts a ridiculously high standard on people accused. Even if they’re very successful in defending the accusations, they still could end up with a massive bill. The issue with this particular point that has been raised in the Senate committee, without adequate answers, is what happens in the event where the accusations extend beyond just the discriminatory matters that this bill purports
to cover? Say somebody had brought complaints under industrial relations law but, in that case, they’d also had a matter of racial or sexual discrimination. If they were successful in the discriminatory issue but unsuccessful in the industrial relations complaints, under this bill and a literal interpretation of the bill as drafted it would mean the court would have to award costs to the complainant for all those matters, even though they were completely unsuccessful on a group of matters—say, on industrial relations—that they had brought. That seems completely out of whack as well. Again, the government hasn’t really shown good faith here in answering these legitimate issues that have been raised by many people, including good faith people in the legal fraternity and the judicial fraternity, about these issues in the Senate committee. This is interfering with long-held practices in our courts. The fundamental issue here, while I’m on this point, is where’s the evidence that this is broken? We can absolutely understand the personal nature of complaints in sexual harassment cases and the possible need for some tweaking here to help people bring forward such issues that are very hard for anyone to do. But on these general issues of disputes between people—that obviously get quite heated at times but arise whenever you get humans interacting with each other—where is the evidence that our longstanding court processes about costs orders are broken? There’s a decision the judicial courts make about these matters. They consider the judgement as a whole. They consider all the arguments. They consider, even, the potential pre-trial negotiations that occurred and whether or not plaintiffs and defendants were reasonable in their offers or rejections of settlement. They consider all those things and make a considered decision, taking all those factors into account, about who or if anyone should be awarded costs. This now tilts it all in favour of the complainant. That obviously is a massive blank cheque to big corporate law firms who make money off running court cases. That’s what they’re in the business of doing. Sometimes it’s
important to take those sorts of cases and defend people who’ve been wronged in life but obviously there is an element of that community that takes that to extremes, and we end up with a society crushed under excessive litigation where a lot of people get hurt—except for the lawyers, of course, as I mentioned. Going back to the detail, another issue here is that the model says that it’s very restrictive on when or if costs should be awarded against the plaintiff or the accuser. As I said, the accuser, if they win on one factor, will get all their costs paid. Obviously, they’ve got an incentive to launch as many actions and issues as they can, because they only have to be successful on one to get everything paid for. In the event that they don’t get any of them up, though, it’s very rare that they’d get costs awarded against them. That will only happen, under this bill, under limited circumstances, and I will go through those. The court will only be able to issue costs against the complainant, the plaintiff, to the respondent if the complainant: … instituted the proceedings vexatiously or without reasonable cause— That’s quite a high bar. They’d have to prove there was a vexatious element to the complaint. … the applicant’s unreasonable act or omission caused the other party to incur the costs—That’s a bit vague. Is it just the costs that were incurred as a result of the unreasonable behaviour or all of the costs? The court can award costs if the respondent is successful in the proceedings; they have to be successful, obviously, to have this awarded to them. Other aspects are that they do not have a significant power advantage and do not have significant financial or other resources relative to the complainant. Again, this seems to be an incitement to take action against people and companies that happen to be well-to-do. The Labor Party probably doesn’t worry about that: ‘Oh yeah, let them go. They’re big businesses; they are rich people. Make them go through the courts.’ But there’s got to be an element of justice in our society. I thought that,
in our system, when you go into the courts ‘the lady’s blind’—right? The scales are there, and there’s a blindfold. It’s probably a goddess or something; I’m not a lawyer, so I don’t know the ancient mythology behind it. But she’s blind, because we think justice is blind. It doesn’t matter whether you’re rich or poor, or what colour your skin is; we all have the same rights in that court, as citizens of this country. And as a citizen of Australia you have a right to defend yourself, a right to being presumed innocent before being proven guilty, a right to representation and a right to be
treated fairly in the court. But this sets up a situation where the sort of justice you have depends on your financial circumstances. Again, there are some elements of this in this chamber: ‘Oh, well; you’re rich. Too bad.’ I don’t like that. I don’t like setting our country up against each other like that. We’re all Australian citizens and we all deserve the protections of the law. It’s one of the fundamental bedrocks of our democracy, of our longstanding traditions of treating everybody equally. But this bill completely tosses that out in what, as I said at the start of my contribution, seems to be the provision of a blank cheque to big corporate law firms by the Labor Party, who are having no regard to our histories and traditions but are simply trying to benefit their political mates in that sector. I don’t think this bill has a leg to stand on in any credible or logical fashion. I’d implore the government to go back to consider the recommendations of a report that’s been accepted by all parties in this place and drop this blatant attempt to tilt the scales of justice against some Australians in favour of others—mainly those who happen to have a law degree and who make their money from launching litigations.