Information about the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 passed on 19 September 2024, marking the final legislative step to implement recommendations from the Respect@Work Report.
The final legislative reform required to implement the recommendations of the AHRC Respect@Work report.
The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 passed both houses on 19 September 2024.
This Bill establishes costs protections for applicants perusing claims of sexual harassment, thereby preventing courts from issuing costs orders against applicants. This Bill also establishes that respondents, typically employers, may be responsible for covering the legal costs of a Sexual Harassment case under the Sex Discrimination Act 1984 (Cth).
Understanding the costs protection provision
A cost order is an order issued by a court which will set out which party (applicant or respondent) must pay the legal costs associated with the proceedings. This means that before this Bill was passed, an applicant who has engaged in court proceedings against their employer due to sexual harassment, may have be ordered to pay their legal costs and the respondents’ costs as well.
This type of cost provision has been described as operating as a “significant disincentive for applicants to pursuing sexual harassment matters” [1], because of the risk that the applicant may need to bear both their own costs and those of the respondent.
The ‘equal access’ model
During consultation of the Respect at Work Bill 2022, advocacy emerged for adopting the ‘equal access’ cost protection, rather than the ‘cost neutral’. The equal access cost protection would operate as follows:
- The default position will be that applicants do not pay respondent’s costs (exceptions apply).
- If an applicant is successful and the court has found that a respondent has engaged in discriminatory conduct, the respondent will be liable to pay the applicant’s costs.
- If an applicant is unsuccessful, each party will bear its own costs.
Modified ‘equal access’ approach
The enacted Bill introduces a modified version of the ‘equal access’ model.
While the Bill provides a default position that the applicant must not be ordered to pay costs, there are exceptions to this. An applicant may be ordered to pay the costs incurred by the other party if:
- The applicant has found to have acted vexatiously or without reasonable cause;
- The applicant’s unreasonable act or omission cause the respondent to incur the costs; or
- The other party is a respondent who is wholly successful, does not possess significant power over the applicant, and lacks substantial financial or other resources compared to the applicant.
Where to next?
- The biggest protection an employer can hold is to ensure substantial and regular training and education of all employees regarding these matters.
- Ensure your managers and leaders are aware of their obligations and they are contributing and enforcing a positive culture.
- Update your policies to ensure that you have a grievance procedure which encourages swift action for any complaints.
- If you are concerned that something like this may occur, or is occurring, in your business then reach out to specialists who can help you resolve the issue.
For tailored advice or assistance, speak to our compliance experts.
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