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BigLaw leaders, legal advocates slam proposed costs provisions for sexual harassment litigation
Over 100 individuals and organisations, including principals of national law firms, barristers and law professors, have signed a letter to the Attorney-General and Minister for Women expressing “deep concern” over the proposal for litigants to bear their own costs in sexual harassment cases, which could also make it “uneconomical” for law firms to offer no-win, no-fee arrangements.
Jerome Doraisamy
In a letter sent to Attorney-General Mark Dreyfus KC and Senator Katy Gallagher, the Minister for Women, legal institutions, practitioners, academics and advocacy groups have implored the Albanese government to forgo a “faulty” costs provision that could, they argued, undermine efforts to eradicate the scourge of sexual harassment in workplaces.
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Signatories noted that they welcome the introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, noting it is a “landmark” step towards implementation of the Respect@Work report.
“The bill will go a significant way to strengthening legal protections against workplace sexual harassment. We applaud the government on its commitment to preventing and addressing workplace sexual harassment and other forms of discrimination,” they wrote.
However, the signatories went on, they harbour “deep concern” about the proposal for a costs neutrality model, under which litigants would bear their own costs for proceedings, unless a court orders otherwise, including in “just” circumstances” of where circumstances are such that “justify it doing so”.
Such arrangements would be an improvement on the status quo, but the proposal’s design and uncertainty around its operation mean that it will, “in fact, serve to undermine access to justice”, the signatories wrote.
“The proposed model will ultimately make it harder for targets of sexual harassment to vindicate their legal rights; it will deter women from pursuing cases and reduce the compensation that they will achieve if they do proceed.
“Taking a costs neutrality approach to a relationship that is characterised by endemic inequality only serves to entrench that inequality. The proposed approach will also make it uneconomical for law firms to offer no-win, no-fee arrangements in discrimination matters and make it unviable to bring class actions against employers,” they wrote.
Signatories recommended, instead, that the revised costs provision be modelled on equivalent provisions in the Corporations Act.
“This model could be used for all anti-discrimination claims (consistent with the bill) or, as an interim measure, only apply to sexual harassment claims — to be followed by a comprehensive review of costs in anti-discrimination litigation,” they wrote.
Ultimately, the bill is a “great step forward” in combatting the scourge of sexual harassment in workplaces, the signatories concluded.
“We implore you not to allow a faulty costs provision to undermine its positive impact,” they wrote.
Signatories to the letter include: the Public Interest Advocacy Centre, Australian Women Lawyers, Women Lawyers Association of NSW, representatives of the Australian Discrimination Law Experts Group, principals and practice leaders from BigLaw practices Shine Lawyers, Maurice Blackburn Lawyers and Australian Family Lawyers, law professors from multiple universities, and barristers across numerous states.
