The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 recently passed both Houses of Parliament and on 1 October 2024, the Bill received Royal Assent. With the passing of the Bill, the Federal Government has now implemented each of the recommendations made in the landmark Respect@Work report published in 2020.
The Bill varies the costs regime under the Australian Human Rights Commission Act 1986 (Cth), broadening the circumstances in which an applicant will be awarded costs in discrimination and sexual harassment proceedings, and limiting the circumstances in which a costs order can be made against an applicant who is unsuccessful in the proceedings.
The removal of the costs burden for applicants in these proceedings will have significant implications for employers going forward.
What are the changes?
There are two key changes under the Bill, which are summarised below:
- Where proceedings are commenced in which an applicant has alleged multiple breaches of the relevant anti-discrimination legislation, and the applicant is successful in one or more of these claims, the court must order that the respondent pay the applicant’s costs. The only exception is where the court is satisfied that an unreasonable act or omission by the applicant caused certain costs to be incurred by the applicant.
- Where an applicant is wholly unsuccessful in the proceedings, the court cannot make a costs order against the applicant, and each party must pay their own costs. There are only very limited exceptions to this rule, namely, where:
- the applicant instituted the proceedings vexatiously or without reasonable cause;
- the applicant’s unreasonable act or omission caused the other party to incur the costs; or
- the other party is a respondent who was successful in the proceedings, the respondent does not have a significant power advantage over the applicant, and the respondent does not have significant financial or other resources, relative to the applicant.
What should employers do?
Employers have a positive duty to take reasonable and proportionate measures to eliminate sexual discrimination, sexual harassment, and victimisation, as far as is possible. Given these changes to the costs regime under the Australian Human Rights Commission Act 1986 (Cth), employers’ compliance with this positive duty is imperative. Undertaking proper risk assessments of their workforce, providing regular training to their employees, and updating their policies and procedures are just some of the steps that employers should take to mitigate the risk of discrimination and harassment claims being made by their employees or others, which will now be all the more expensive to deal with.
Addisons’ Employment & Workplace Relations team can help employers understand and comply with their obligations with respect to unlawful discrimination, harassment, and sexual misconduct in the workplace.