2 min read

Proposed cost order changes to federal discrimination claims

By Kelly Godfrey

On 15 November 2023, the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (Costs Protection Bill) was introduced into Federal Parliament.

The Costs Protection Bill proposes to reduce the cost implications for applicants who make discrimination claims, including sexual harassment claims, such as under the Sex Discrimination Act 1984 (Cth).

Cost orders

Normally where applicants make such claims and are unsuccessful, costs orders can be made against them by the Federal Circuit and Family Court of Australia and the Federal Court.

The Respect@Work Report found this acted as a disincentive to applicants bringing such claims. If passed, the Costs Protection Bill, would bring greater consistency between the main legislative schemes, but would not go as far as the Fair Work Act 2009 (Cth), which only awards cost orders against a party in very limited circumstances.

The Costs Protection Bill proposes to insert a cost protection provision into the Australian Human Rights Commission Act 1986 (Cth).

What happens if the Costs Protection Bill is passed?

Where an applicant is unsuccessful on all grounds, parties would generally bear their own costs. However, an applicant may be liable for the costs of another party where:

  • the applicant instituted the proceedings vexatiously or without reasonable cause; or
  • the applicant’s unreasonable act or omission caused the other party to incur the costs; or
  • all the following apply:
    • 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.

Where an applicant is successful in proceedings on one or more grounds against a respondent, the court would need to order that the respondent pay the applicant’s costs. The court could not make no order as to costs. However, if the court found that the applicant, by their own unreasonable act or omission, caused the applicant to incur costs, the court would not be required to order the respondent to pay the costs incurred as a result of that act or omission.         

The proposed changes would also apply to representative applications to encourage public interest litigation in unlawful discrimination matters. 

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