The Law Council of Australia does not believe an equal-access model, as currently being considered by Parliament, is the best way to encourage Australians to pursue legitimate discrimination claims.
“The commendable objective of the Human Rights Commission Amendment (Costs Protection) Bill 2023 (Cth) is to address the risk that the possibility of facing an adverse costs order may discourage an individual from commencing a federal discrimination proceeding,” Law Council of Australia President, Mr Greg McIntyre SC said.
Appearing before the Senate Legal and Constitutional Affairs Committee yesterday, the Law Council noted that the intent of the Bill is to protect applicants from adverse costs orders in most circumstances, including where their claim is dismissed. An adverse costs order means the applicant must pay their own and the respondent’s legal costs.
“Our legal system must not deter victim-survivors of sexual harassment and other forms of discrimination from holding their persecutors to account,” Mr McIntyre said.
“However, this Bill tilts the balance in such a way that it could increase unmeritorious claims and reduce incentives for parties to engage genuinely with the Australian Human Rights Commission’s (AHRC’s) conciliation processes and, later, in any alternative dispute processes available in the courts and settlement negotiations.
