Australian Human Rights Commission Amendment (Costs Protection) Bill 2023

The majority voted in favour of a motion to agree with the remaining stages of the bill and pass the bill in the Senate. Because the bill has already been passed in the House of Representatives it will now become law.

What does this bill do?

According to the bills digest (which is a document prepared by the parliamentary library):

• The purpose of the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 is to amend the Australian Human Rights Commission Act 1986 (AHRC Act) to insert a cost protection provision to apply to all unlawful discrimination proceedings commenced in the federal courts.

• The 2020 Respect@Work Report prepared by the Australian Human Rights Commission (AHRC) recommended the insertion of a ‘hard costs neutrality model’ into the AHRC Act where costs can only be ordered against a party as a result of their own actions, to provide certainty for applicants.

• The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect at Work Bill 2022) originally included provisions to provide that each party will bear their own costs, with discretion given to the courts to depart from this position (the ‘soft costs neutrality model’). These provisions reflected the position put forward by the AHRC in its 2021 Free and Equal Position Paper.

• During consideration of the Respect at Work Bill 2022, some stakeholders advocated that the Government adopt an ‘equal access model’ which would prevent a court from ordering an applicant to pay the respondent’s costs except where the applicant had acted vexatiously or unreasonably.

• *As a result of these concerns, the Government moved amendments to remove the cost provisions from the Respect at Work Bill 2022 and requested the Attorney-General’s Department undertake consultations on which costs model to adopt.

Stakeholder submissions received by the Government were mixed, with the AHRC preferring the soft costs neutrality model, while the Law Council of Australia was unable to arrive at a clear position. Other stakeholders, such as the Australian Discrimination Law Experts Group and Australian Council of Trade Unions, supported an equal access model.*

• The Bill proposes adopting the requirements of the equal access model but adding the ability to award costs against an applicant in circumstances where the respondent has been successful on all grounds, 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. Whether these circumstances apply will be left to the courts to determine.