AICD submission on Australian Human Rights Commission Amendment (Costs Protection) Bill 2023

The provisions in this Bill are aimed at implementing the outstanding recommendation which requires legislative reform (recommendation 25), which stated: Recommendation 25: Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth).

The AICD previously recommended an alternative ‘equal access’ model whereby the successful complainant would always recoup their reasonable costs from a respondent, and an unsuccessful complainant would not face an adverse costs order, except in exceptional circumstances. We are pleased that a similar approach has been set out in the Bill and support its implementation.

Our key points were:

General comments

• The AICD supports removing disincentives to applicants bringing civil proceedings in this area, such as an unsuccessful plaintiff being ordered to pay the other party’s legal costs, except in exceptional circumstances. As the AHRC noted in Free and Equal: A reform agenda for federal discrimination laws (2021), ‘costs rules frame the whole approach for complainants.’
• The AICD therefore supports the Bill’s default position that the ‘applicant must not be ordered by the court to pay costs incurred by another party to the proceedings.’

Where a respondent must be ordered to pay the applicant’s costs

• The AICD supports the Bill’s approach that a complainant that is successful on one or more grounds, must have a costs order made in their favour. This is important for complainants in terms of access to justice, as applicants would be able to initiative proceedings in the knowledge that, if they are successful, they will have their legal costs met by the respondent.

Where an applicant can be ordered to pay the respondent’s costs

• The AICD supports the Bill’s position that an unsuccessful applicant will not be ordered to pay a respondent’s costs unless the applicant commenced proceedings vexatiously or without reasonable cause. We note that this proposal is very similar to a previous AICD recommendation from an earlier consultation.
• The AICD notes however the Bill’s proposal that an unsuccessful applicant may be ordered to pay the respondent’s costs if the applicant's unreasonable act or omission caused the applicant to incur costs. Whilst the Explanatory Memorandum notes this is ‘intended to be a high threshold and reserved for rare cases,’ we recommend the Bill’s drafting make this more explicit. It is important that such a provision does not unintentionally deter applicants from bringing proceedings.
• The AICD supports the Bill’s provision that an unsuccessful applicant may be ordered to pay a respondent’s costs if the respondent is successful on all grounds and does not have a significant power advantage over the applicant and significant financial or other resources relative to the applicant.