Joint Submission to the Attorney-General’s Department’s review into an appropriate cost model for Commonwealth anti-discrimination laws

PIAC and Grata Fund made a joint submission to the Attorney-General’s Department’s consultation on reforms to the costs model for Commonwealth anti-discrimination laws.

At present, the unsuccessful party in anti-discrimination and sexual harassment cases is generally required to pay the other side’s legal costs. This can be a major deterrent for victim-survivors, and can stop people from pursuing their legal rights in court out of fear they will face a large costs order if they cannot prove their case. The 2020 Respect@Work Report recommended the Federal Government legislate to change this model for how costs are awarded. This consultation seeks to inform government on the best model to adopt.

Our submission recommends that the Government adopt the ‘equal access’ costs model. In this model, an applicant who goes to court alleging they have been sexually harassed or discriminated against would be able to recover their own legal costs if they are successful. If they are unsuccessful, they would only need to pay the other side’s costs if they had behaved vexatiously or unreasonably in bringing or during the case.

We argue, based on our experience running these types of cases, that an equal access model will:

• allow more victim-survivors to assert their rights in court, without the fear of a possible large adverse costs order being made against them;
• create a more level playing field between individual victim-survivors, and the well-funded organisations they are often opposing in these cases;
• help increase access to justice for victim-survivors of harassment and discrimination by allowing them to access legal representation on a ‘no-win, no-fee’ basis; and
• encourage better development of the law and reinforcement of norms against discrimination and harassment in the community.

We explain why we do not believe that this model will lead to negative unintended consequences, nor would any other proposed costs model achieve the goals of the reforms.