SUMMARY: WHY WE SUPPORT THIS BILL

This issue is not new and has been raised multiple times in previous inquiries.2 ISSUES WITH THE EXISTING COSTS MODEL The existing costs model, whereby costs follow the event subject to the residual discretion of a court to award costs differently,3 can undermine the effectiveness of discrimination protections because of imbalances in power, knowledge and financial resources between a typical comp. [...] The requirement to make a complaint to the Australian Human Rights Commission (AHRC) which must have been terminated by the President of the AHRC prior to commencing proceedings in the federal courts, and associated restrictions on who may commence proceedings, mean that complaints lacking in substance are less likely to be commenced in the federal courts.5 This lessens the risk that a respondent. [...] The ultimate outcome in discrimination complaints often relies on information exclusively held by the respondent, who bears the burden of proof in respect of the ‘reasonableness’ requirement under the definition of indirect discrimination and any legal exception that they seek to rely upon (such as the defence of unjustifiable hardship).10 Further, the real reason underlying any detrimental treatm. [...] Section 46PSA(6) of the Bill includes safeguards that allow a court to award costs where: • the complainant has acted vexatiously or without reasonable cause; • the complainant’s unreasonable act or omission caused the other party to incur the costs; or • the respondent was successful in the proceedings and does not have a significant power advantage over the complainant or significant financial o. [...] The risk of an adverse costs order is part of that consideration, but so are the merits of the matter and the time, effort, delay and actual costs (not all of which can be recouped through a costs order) which will be incurred for the complainant and respondent alike.