Proposed Changes to Australian Law on Sexual Harassment Cases Raise Concerns of Clogged Courts and Unmeritorious Claims, Warns Law Council

CANBERRA, Australia – The Law Council of Australia has expressed concerns over proposed changes to legislation that would remove cost barriers for applicants in sexual harassment and discrimination cases. The legal body warned that such changes could lead to an influx of “unmeritorious” claims and overload the court system. In its submission to a parliamentary inquiry hearing, the Law Council stated that the bill presented by the Labor Party tilts the balance heavily in favor of accusers and places the financial risk on those being accused.

The proposed cost protection amendments, introduced by the federal government in November, would provide protection to applicants even if their case against a respondent is unsuccessful. Attorney General Mark Dreyfus argued that the changes would eliminate a significant barrier for those seeking justice in federal court proceedings for unlawful discrimination.

Although the Law Council acknowledged the argument for an asymmetrical costs model, it disagreed that it was the appropriate approach. The legal body expressed concerns that the bill disproportionately favors applicants and shifts the financial risk and disincentive for unmerited claims to the respondents.

The council emphasized that cost orders are just one aspect of a complex issue. It recommended stronger roles for non-court institutions, increased availability of legal aid, and judicial education as important measures. The council also stressed the need to monitor the combined effect of recent reforms aimed at eliminating workplace sexual harassment.

The government’s proposed legislation aligns with a recommendation from the landmark Respect at Work report in 2020, which called for the introduction of a “hard cost neutrality” model. This model would require each party to bear their own legal costs, except in cases where a party acted vexatiously or unreasonably.

The Australian Human Rights Commission also expressed concerns about unintended consequences of the bill, such as reducing the incentive for out-of-court settlements and potentially affecting fairness for smaller respondents. The commission recommended an amendment to include a mandatory review of the changes within three years.

Kieran Pender, a lawyer involved in a research team that informed the Attorney General’s Department’s chosen model, described the bill as a welcome step forward. Pender argued that an asymmetrical model is necessary to address power imbalances and resource disparities faced by individuals who experience sexual harassment.

The proposed legislation has sparked a debate over the appropriate balance between protecting accusers and ensuring fairness for those accused. It remains to be seen how lawmakers will address the concerns raised by the Law Council and the Australian Human Rights Commission.