However, what has received little attention is the amendment to the cost provisions in unlawful discrimination matters, which is likely to have unintended consequences for complainants seeking access to justice through the courts.

Presently, the general approach is that costs follow the event in sexual harassment proceedings. That is, the winning party is entitled to recover costs, and the losing party is exposed to having to pay costs.

The Respect@Work Report heard that the risk of adverse cost orders acts as a disincentive to applicants considering pursuing their sexual harassment matters in the federal courts.

To address this concern, and in keeping with the recommendations of the Respect@Work Report, the bill seeks to introduce what is described in the explanatory memorandum as a “cost-neutrality” approach.

Pursuant to this amendment, the default position is each party would bear their own costs in sexual harassment proceedings. However, the courts would retain discretion to depart from this default position and award costs in certain circumstances, but there is no certainty as to cost recovery. 

Although the intention is to remove a disincentive from pursuing claims in court, in practice, the amendment is likely to deter claims and have a chilling effect on the jurisdiction. 

The courts recognise the harm suffered by those who have been sexually harassed primarily through compensation awards. However, damages awards for sexual harassment have remained persistently low. Since the decision in Richardson v Oracle Corporation Australia Pty Ltd, which set a new benchmark for sexual harassment damages, there have been only seven substantive decisions in sexual harassment cases in which general damages were awarded. The average awarded was $50,000, with a median of $70,000. Further, economic loss claims are often met with a conservative assessment by the courts. At the same time, the overall cost of proceedings, often exacerbated by the tactics adopted by employers and perpetrators who have deeper pockets, can regularly exceed these damages awards.

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In reality, without any certainty as to costs being recoverable, the cost-benefit analysis in pursuing a claim in court diminishes significantly, acting as a barrier to justice for individuals who have been sexually harassed and forced to take a reactive approach to remedy the loss and damage suffered.

Indeed, the amendment provides equal protection to respondents in circumstances where the power and economic differential between complainants and well-resourced corporate respondents is vast. It also presents an opportunity for respondents to use the default cost position to minimise settlements.

The Fair Work Act, which contains a similar default position on costs, has presented such barriers for workers. Often, workers face a commercial disincentive in enforcing their rights, particularly in underpayment claims, with the result being a prevalent wage theft problem in Australia.

If the intention is to protect complainants and improve access to justice, a cost-neutral approach misses the mark.

Alongside the positive duty, ensuring a viable jurisdiction remains available to claimants to enforce their rights through the courts is a critical component of any overall scheme aimed at preventing and addressing sexual harassment, recognising harm, and deterring behaviour.

In order to truly achieve the stated aims, the amendment should replicate the cost protection afforded to whistleblowers under the Corporations Act. Under that legislative scheme, it is only the whistleblowers who are afforded protection from having to pay the costs of the other party, and they remain able to recover their costs if they succeed.

Ultimately, those that expose sexually hostile and unsafe workplaces are whistleblowers who ought to have the same protections without constraints on achieving just outcomes.

Mia Pantechis is a principal lawyer in employment law at Maurice Blackburn Lawyers.