By Cilla Robinson and Lauren Cooper -
Snapshot
- The cost protection reforms provide protection for applicants in discrimination proceedings by ensuring that where an applicant is successful on one or more grounds, the court must order the respondent to pay the applicant’s costs.
- The default position under the reforms is that the applicant must not be ordered to pay costs incurred by another party to the proceedings. Even where an applicant is unsuccessful on all grounds, parties generally bear their own costs.
- The provisions apply to all unlawful discrimination matters under the Australian Human Rights Commission Act 1986 (Cth) that proceed to court.
- The reforms incentivise organisations to address workplace cultures that permit discriminatory conduct and will likely lead more discrimination proceedings being brought in the federal courts.
The Australian Human Rights Commission Amendment (Costs Protection) Act 2024 (Cth), which commenced operation on 2 October 2024, significantly changes the operation of costs applications under the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) by inserting a costs protection provision that applies to all unlawful discrimination proceedings commenced in the federal courts.
The amendment was introduced in response to the recommendation from the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (‘Respect@Work Report’) to include a cost protection provision in the AHRC Act, aimed at providing applicants with greater costs certainty when making discrimination and harassment claims.
The reform alleviates the barrier to justice that adverse costs risks formerly posed in federal unlawful discrimination proceedings, with the broader intent of strengthening Australia’s anti-discrimination framework.
