Under Australian law, the losing side in a court case is often required to pay the other side’s legal costs.
As a result, communities including First Nations people, people with disability and victim-survivors of sexual harassment are among those who are being increasingly priced out of Australian courts, legal advocates warn.
Redfern Legal Centre was one of a number of legal organisations that contributed to the research.
"Our clients are discriminated against at work. Many have strong claims, but the risk of having to pay the other side’s legal costs stops them from seeking justice through the court," Sharmilla Bargon, senior solicitor in employment law at RLC said. "The government has a real opportunity here to ensure that all workers feel safe to pursue justice and right wrongs."
Legal fees in public interest cases often run to hundreds of thousands of dollars, especially when private companies are involved. This is more than enough to scare off most people, even if they have a strong case and are unlikely to lose because they cannot afford to take the risk.
Public interest litigation often involves people from marginalised or disadvantaged communities taking legal action against government agencies or large corporations. While one side is generally reliant on Community Legal Centres or pro bono legal support, the other side has access to expensive legal teams and is able to claim legal costs as a tax deduction.
In some cases, companies have even asked the courts to require significant up-front payments - known as ‘security for costs’ - from plaintiffs before their case is allowed to proceed to trial.
In many similar countries, public interest litigants are protected from adverse costs. However, successive governments have failed to introduce similar reforms in Australia.
“The courts shouldn’t be the sole domain of the rich and powerful, but in Australia, that’s increasingly the case. It’s already an uphill struggle for ordinary people going up against the government or big companies in court," Maria Nawaz, acting executive director, Grata Fund said.
"We’re seeing the rich and powerful use the courts to silence others with litigation from mining companies targeting activists, to governments restricting protest rights, but ordinary people who face sex, race or disability discrimination can’t get the protection of the law because of the risk of paying the other side’s legal bill. Where’s the justice in that?" Ms Nawaz said.
