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An urgent, joint letter – costs in sexual harassment litigation

Nov 8, 2022 | Law, Sexual violence, Legal, Activism, Politics, Commentary, Leadership, Equality, Gender, Sexual Harassment, Feature

Written by Ginger Gorman

Here at BroadAgenda and the 50/50 by 2030 Foundation at the University of Canberra, we are proud signatories to a joint letter that has been tabled in Federal Parliament this week. We believe the contents of the letter are urgent – not just for targets of sexual harassment – but for each and every one of us, as we seek a fairer and more just society that’s free from gendered violence.

The letter, which you can read in full underneath, addresses a specific concern we have regarding the proposed Respect@Work legislation.

While we’re broadly supportive of the proposed legislation, we have concerns about one particular aspect – and that is so-called “cost neutrality” in sexual harassment litigation. 

This would require both sides in sexual harassment suits to pay their own costs. This will greatly damage sexual harassment victims’ ability to take matters to court. Or put the opposite way: We believe this will unfairly benefit employers and alleged perpetrators.

Alongside us, it is signed by organisations and individuals involved in sexual harassment and discrimination litigation, as lawyers, law firms, academics, advocates, trade unions, health services and policy experts. 

If you wish to understand this further, Josh Bornstein, head of employment law at Maurice Blackburn, was on the ABC earlier this week discussing the issues at play. 

If you want to do more reading, the issues are further unpicked here. A seperate letter outlining the concerns of community legal centres also been sent to Parliamentarians.

Please put your support behind this letter and share it as widely as you can.

❖❖❖❖❖

The Hon Mark Dreyfus KC MP 4 November 2022 

Attorney-General 

Senator the Hon Katy Gallagher 

Minister for Women 

Joint Letter – Costs Protections in Sexual Harassment Litigation 

Dear Attorney-General, Minister, 

We the undersigned are organisations and individuals involved in sexual harassment and discrimination litigation, as lawyers, law firms, academics, advocates, trade unions, health services and policy experts. 

We welcome the Albanese Government’s introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill). The Bill is a landmark step towards implementing the recommendations of the Sex Discrimination Commissioner’s 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. 

However, we write to express our deep concern at the proposed amendments to the costs provisions in the Australian Human Rights Commission Act 1986. The Bill proposes a costs neutrality model, whereby litigants bear their own costs unless the court orders otherwise. The Bill provides that the court may make such orders as to costs as they consider “just” where “there are circumstances that justify it in doing so.” The Bill sets out various factors the court must have regard to in making costs orders. 

While superficially the arrangement represents an improvement on the status quo, its design and uncertainty around its operation will in fact serve to undermine access to justice. 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. 

We urge you to amend the Bill to include an “equal access” asymmetrical costs model. Such an approach would protect a complainant from an adverse costs order, unless they have acted vexatiously or unreasonably, but enable them to recover costs should they succeed. This model would recognise the significant inequality in resources between complainants in sexual harassment matters and their employers. It would also underscore the wider public interest in those who have been sexually harassed vindicating their legal rights. 

We would recommend that the revised costs provision be modelled on equivalent provisions in the Corporations Act 2001. 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. 

The Bill is a great step forward in addressing the scourge of sexual harassment in our workplaces. We implore you not to allow a faulty costs provision to undermine its positive impact. 

Kind regards. 

Grata Fund 

Public Interest Advocacy Centre 

Australian Council of Trade Unions 

Australian Women Lawyers Ltd 

Women Lawyers Association of New South Wales 

Working Women’s Centre SA Inc 

Australian Discrimination Law Experts Group (endorsed by)
Dr Fiona Allison, University of Technology, Sydney
Ms Robin Banks, University of Tasmania
Dr Elizabeth Dickson, Queensland University of Technology
Mr Liam Elphick, Monash University
Professor Beth Gaze, University of Melbourne
Professor Beth Goldblatt, University of Technology, Sydney
Associate Professor Anne Hewitt, University of Adelaide
Dr Sarah Moulds, University of South Australia
Associate Professor Karen O’Connell, University of Technology, Sydney
Ms Adriana Orifici, Monash University
Professor Simon Rice, University of Sydney
Associate Professor Belinda Smith, University of Sydney
Dr Peta Spyrou, University of Adelaide
Dr Bill Swannie, Victoria University
Emerita Professor Margaret Thornton, The Australian National University

Shine Lawyers
Samantha Mangwana (Practice Leader ‑ Employment Law) 

Maurice Blackburn Lawyers
Josh Bornstein (National Head of Employment Law)
Alexandra Grayson (Principal Lawyer)
Mia Pantechis (Principal Lawyer)

Violet Co Legal & Consulting
Karen Iles (Principal Solicitor)

Gen Vic
Dr Helen Keleher (Acting CEO, Gender Equity Victoria)

Women’s Health Goulburn North East
Amanda Kelly (Chief Executive Officer)

Women’s Health in the South East
Kit McMahon (Chief Executive Officer)

Drummond Street Services
Karen Field (CEO)
Silvana Arcifa (General Manager Family Services)
Cheryl Miller Yell (Director Strategic Partnerships and Projects)
Phoebe Wallish (Director of Business Development & Systems + General Manager Stepfamilies Australia)
Jemma Mead (Director of Services)
Helen Rimington (General Manager, Families, Youth and Communities)
Paula Fernandez Arias (General Manager Queerspace)
Rebecca Cooper (General Manager of Operations and Facilities)
Ali Hogg (Manager of Communications)
Andrew Rush (Clinical Governance and Practice Lead)
Robert Riccioni (Corporate Director)

Association of Employees with Disability (AED Legal Centre) 

Women’s Health Victoria
Carolyn Mogharbel (Acting Chief Executive Officer) 

Dhanya Mani
Survivor advocate
Founder, Kate’s List

Professor Michelle Ryan
Director, Global Institute for Women’s Leadership

Kieran Pender
Honorary Lecturer, ANU College of Law

Professor Nareen Young, Associate Dean (Indigenous Leadership and Engagement)
UTS Business School

Associate Professor Dominique Allen
Faculty of Law
Monash University

Professor Emerita Sara Charlesworth
College of Business & Law
RMIT University

Sue Webeck
Chief Executive Officer
Domestic Violence Crisis Service

Mary Crooks AO
Executive Director
Victorian Women’s Trust

Sheryn Omeri
Barrister, English Bar and Australian Bar

Leah Marrone
Barrister, Flinders Chambers

Ginger Gorman
Award-winning social justice journalist
Editor, BroadAgenda

Amy Kilpatrick
Director, Governance & Strategy
50 50 by 2030 Foundation
University of Canberra

Alex Eggerking

Professor Nicola Henry
Social & Global Studies Centre
RMIT University

Dr Alice Witt
Research Fellow
RMIT University

Professor Fiona Jenkins
Convenor, ANU Gender Institute
The Australian National University

Dr Regina Torres-Quiazon
Acting Executive Director
Multicultural Centre for Women’s Health

Dr Evita March
Senior Lecturer
Federation University

Lula Dembele
Survivor advocate

Frances Crimmins
CEO YWCA Canberra

Katherine Berney
Director National Women’s Safety Alliance

Dr Alex Poll
Lecturer
Federation University

Louisa Chatterton
Clinical Psychologist |Lecturer
Federation University

Rosie Batty AO
2015 Australian of the Year

Dr Patricia Cullen
Senior Lecturer
Population Health, UNSW
Early Career Fellow, National Health and Medical Research Council

Professor Michael Flood
Queensland University of Technology

Sarah Nelson
Survivor Advocate

Hayley Foster
Chief Executive Officer
Full Stop Australia

Cathy Humphreys
Professor of Social Work
University of Melbourne

Kim Sattler
Delia Donovan
Chief Executive Officer
Domestic Violence NSW

Kathie Melocco
WOW Chaplaincy

Emeritus Professor Madeleine King
University of Sydney

Rebecca Glenn
Founder & CEO
The Centre for Women’s Economic Safety

Professor Julian Webb
Melbourne Law School

Tess Moodie (they/them)
Advocate, Consultant and Speaker

Maree Crabbe
Founder and Director
It’s Time We Talked

Stella Topaz

Natalie Hocking
Survivor Advocate

Dr Chay Brown
Australian National University, The Equality Institute
Survivor Advocate

Tony McAvoy SC
Barrister

Emeritus Professor Patricia Easteal AM
University of Canberra

Carol Andrades
Senior Fellow
University of Melbourne

Professor Jenny Morgan
Melbourne Law School

Trish van Leeuwen
Chief Business Development and Philanthropy Officer
Illawarra Women’s Trauma Recovery Centre

Jessica Koot
Vice Chair, Illawarra Women’s Health Centre
Principal Lawyer and Practice Leader – Wollongong
Australian Family Lawyers

Associate Professor Bridget Harris
Deputy Director, Monash Gender and Family Violence Prevention Centre
School of Social Sciences, Faculty of Arts, Monash University

Kristine Ziwica
Journalist, Author and Women’s Advocate

Karen Bentley
Chief Executive Officer
WESNET

Philip Flood AO

Silke Meyer
Professor of Social Work
Griffith University

Jane Matts
Practice Leader
Sisters In Law Project (SILP)
Survivor Advocacy

Kathleen Maltzahn
Chief Executive Officer
Sexual Assault Services Victoria (SASVic)

 

A PDF version is available here:

Joint Letter on the Costs Protections in Sexual Harassment Litigation

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Ginger Gorman is a fearless and multi award-winning social justice journalist and feminist. Ginger’s bestselling book, Troll Hunting, came out in 2019. Since then, she’s been in demand both nationally and globally as an expert on cyberhate and the real-life harm predator trolling can do. She's also the editor of BroadAgenda and gender editor at HerCanberra. Ginger hosts the popular "Seriously Social" podcast for the Academy of the Social Sciences in Australia. Follow her on Twitter.

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