Time for equal access in discrimination claims

14 Apr 2023

Australia continues to grapple with alarming rates of sexual harassment, particularly for women, with 85% having experienced it in their lifetime. Despite several initiatives already aimed at curbing the problem, a recent Australian Human Rights Commissions national survey found that “sexual harassment continues to be an unacceptably common feature of Australian workplaces, with one in 3 workers experiencing workplace sexual harassment in the last five years.”

As an active member of the Power to Prevent coalition, Justice Connect joins the call for the Australian Government to adopt an equal access costs model to ensure that people who decide to pursue a discrimination or sexual harassment lawsuit can access justice and achieve fair outcomes.

The risk of having to pay legal costs is stopping people from pursuing their rights

A major barrier to justice for people who have experienced discrimination and sexual harassment is the risk of having to pay the legal costs of the perpetrator or the perpetrator’s employer should they lose. Equally, they must be able to recover their own legal costs if they win to ensure that they are not left out of pocket, and that legal representation is financially viable and accessible.

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. 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 creates an environment where discrimination and sexual harassment can go on unabated.

This is why we are calling on the Australian Government to adopt an equal access costs model for all discrimination matters.

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.

Read the full joint statement by the Power to Prevent coalition.

Australia has the capacity to prevent and eliminate sexual harassment and discrimination once the barriers in access to justice are removed, and people seeking justice no longer have to face a lifetime of debt simply for enforcing their rights.

It’s time for Australia to adopt equal access for discrimination claims.