New protections for equal access under Federal Anti-Discrimination Laws

3 minute read 04.10.2024 Amanda Watt, Jennifer Patterson, Caitlin Ible, Eliza Evans, Karina Blundo

Recent changes to the Australian Human Rights Commission Act 1986 (Cth) have been passed by the Commonwealth Parliament.

Key takeouts

On 2 October 2024, the 'equal access' costs reforms commenced, requiring a court to order costs against a respondent, where an applicant is successful on one or more grounds in a federal anti-discrimination proceeding, except for in very limited circumstances.

This is a significant change to the costs position for federal discrimination claims commenced under the AHRC Act (eg claims under the Commonwealth Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984.

The reforms will likely impact how parties commence and respond to anti-discrimination claims. The reforms emphasise the ongoing need for organisations to continue to take active measures to prevent unlawful discrimination and provide both physically and psychologically safe and respectful workplaces.

On 19 September 2024, the Commonwealth Parliament passed the Australian Human Rights Commission Amendment (Costs Protection) Bill 2024. This Bill amended the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) with the amendments commencing a day after Royal Assent (ie. from 2 October 2024). The changes mean that a court, except in very limited circumstances:

must order costs against the respondent where an applicant is successful on one or more grounds in a Federal anti-discrimination proceeding; and
will be prevented from ordering an applicant to pay a respondent's costs in Federal anti-discrimination proceedings.

The new costs protection provisions applies to Federal Circuit and Family Court and Federal Court proceedings (including appeals) applications made following termination of a complaint by the Australian Human Rights Commission (AHRC), under section 46PO of the AHRC Act.

The changes have been implemented in response to the 2020 Respect@Work Report, which, among other things, recommended that costs protection provisions for applicants be inserted into the AHRC Act. The aim of the reform is to alleviate barriers that deter many victim-survivors of sexual harassment and other forms of discrimination from commencing legal proceedings given the risk of an adverse costs order.

The Bill departs from the previous position proposed by the Respect@Work Bill in 2022, which proposed that the default costs position be revised to one of 'cost neutrality'.

What you need to know

Previous costs position

The previous costs position for matters of this kind was that costs follow the event – so that the unsuccessful party would ordinarily have to pay their own costs and possibly the costs of the other party (subject to the discretion of the court).

New costs position

On commencement, the new costs position under the AHRC Act means that the court will be prevented from ordering an applicant to pay a respondent's costs in discrimination proceedings, except in very limited circumstances.

The new costs provisions will apply to all unlawful discrimination matters that proceed to court after being terminated by the AHRC.

This is a significant change in the cost position for federal discrimination matters - and applies to all discrimination claims under the AHRC Act – i.e. claims under the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth).

When will the respondent be liable for costs?

A respondent will be liable for costs if the applicant is successful in proceedings on one or more grounds. In this case, the court must order each respondent against whom the applicant is successful to pay the applicant's costs and the court can order that the costs to be paid by the respondent be assessed on an indemnity basis or otherwise.

There is a limited exception for respondents to pay costs in these circumstances, specifically if the court is satisfied that the applicant's unreasonable act or omission caused the applicant to incur costs. If this occurs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission.

When will the applicant be liable for costs?

The applicant must not be ordered by the court to pay costs incurred by another party to the proceedings (including the respondents) except if:

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 of 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;
- the respondent does not have significant financial other resources relative to the applicant.

In the case of a representative application, the court is not authorised to award costs against a person on whose behalf the application is made, other than the person who made the application. These new costs provisions (which also apply to appeals) differ from those in the Fair Work Act and most state discrimination jurisdictions.

How can we help you?

Our team offers deep expertise in creating respectful workplace cultures and managing psychosocial hazards, employee relations, investigations and legal compliance.

If you would like more information about what these changes might mean for your organisation in relation to current AHRC complaints, federal discrimination proceedings or the steps that can be taken to foster and create respectful workplaces, please contact us for support for your organisation.