Time for equal access in discrimination claims

14 April 2023

We all deserve to be safe at work and free from discrimination and sexual harassment. While sexual harassment is pervasive across all industries and all employment levels in Australia, it is not inevitable. The Australian Government has the power to prevent discrimination and sexual harassment by adopting an equal access costs model to ensure that people who are harmed can access justice and achieve fair outcomes.

A major barrier to justice for people who have experienced discrimination and sexual harassment is the risk of having to pay the legal costs of the perpetrator or the perpetrator’s employer should they lose. Equally, they must be able to recover their own legal costs if they win to ensure that they are not left out of pocket, and that legal representation is financially viable and accessible.

These risks stop people from pursuing their rights. This is especially true for diverse and disproportionately affected communities, for people who are low paid and in insecure work, and when people are up against an organisation with large resources such as many employers.

The rules for awarding costs in discrimination matters have a significant impact on access to justice as legal costs can be hundreds of thousands of dollars and many people do not bring claims for fear that they could have to pay the other side’s costs if they lose. This means people do not enforce their rights and claims are rarely aired in court. This allows discrimination and sexual harassment to flourish.

The Power to Prevent Coalition is a group of more than 60 diverse community organisations, unions, academics, peak bodies, health professionals, lawyers and victim-survivors. We see the effects of discrimination and sexual harassment on people every day. Our recommendations to improve the law are based on this direct experience.

This is why we are calling on the Australian Government to adopt an Equal Access costs model for all discrimination matters. This would allow people who experience discrimination and sexual harassment to recover their legal costs if successful. If unsuccessful, they would not be required to pay the other side’s costs, with some limited exceptions such as for vexatious litigation. This model is similar to costs protections already available in whistleblowing law. Adopting this model would mean that people do not face a lifetime of debt simply for enforcing their rights.

Equal Access means:

• People who experience the highest rates of discrimination and sexual harassment are supported to come forward without the risk of becoming bankrupt or having a huge debt simply for enforcing their rights.
• People who have experienced discrimination and sexual harassment can access legal representation.
• There will likely be more case law that sends the message that this behaviour is unacceptable, and will allow damages awards to better reflect community standards.
• We can ensure the new protections in the Sex Discrimination Act are upheld to better eliminate and prevent gender based discrimination.

We can prevent and eliminate sexual harassment and discrimination but to do this we must remove barriers to accessing justice and support people who experience discrimination and sexual harassment to take action.

It’s time for Australia to adopt Equal Access for discrimination claims.