Time for equal access in discrimination claims

We all deserve to be safe at work and free from discrimination and sexual harassment. While our clients tell us about sexual harassment happening across every industry, this form of unlawful conduct is not inevitable. The Australian Government is currently reviewing discrimination laws and there is an opportunity to provide comment about costs in these types of claims. 

A major barrier to justice for people who have experienced discrimination and sexual harassment is the risk of having to pay costs to the perpetrator or the perpetrator’s employer should they lose. Equally, they must be able to recover the cost of their case 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, 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 Employment Rights Legal Service is part of the Power to Prevent Coalition, 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. We have made recommendations to improve the law based on this direct experience.  

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. 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.