First Nations people, people with disability and victim-survivors of sexual harassment are among those being increasingly priced out of Australian courts, legal advocates have warned.
A new report by Grata Fund, The Impossible Choice: losing the family home or pursuing justice - the cost of litigation in Australia, found that people were routinely prevented from using the courts to defend their rights, because they cannot take the risk of being made bankrupt if they lose.
Under Australian law, the losing side in a legal case is often required to pay the other side’s legal costs. This is known as ‘adverse costs’. Unlike in many other countries, public interest cases are not exempt from adverse costs.
Legal fees in public interest cases often run to hundreds of thousands of dollars, especially when private companies are involved. This is more than enough to scare off most people, even if they have a strong case and are unlikely to lose, because they cannot afford to take the risk.
“The courts shouldn’t be the sole domain of the rich and powerful, but in Australia that’s increasingly the case. It’s already an uphill struggle for ordinary people going up against the government or big companies in court. Australia’s cruel system of adverse costs lets millionaires and mining companies leverage their deep pockets and expensive legal teams to scare off all but the most determined people,” said Maria Nawaz, Acting Executive Director, Grata Fund.
Public interest litigation often involves people from marginalised or disadvantaged communities taking legal action against government agencies or large corporations. While one side is generally reliant on Community Legal Centres or pro bono legal support, the other side has access to expensive legal teams and is able to claim legal costs as a tax deduction.
In some cases, companies have even asked the courts to require significant up-front payments - known as ‘security for costs’ - from plaintiffs before their case is allowed to proceed to trial.
In many similar countries, public interest litigants are protected from adverse costs. However, successive governments have failed to introduce similar reforms in Australia.
“We welcome the Government's commitment to implement cost reform as part of Respect@Work, however we urge the Government to go a step further and adopt an equal access model so all cost barriers for sex discrimination cases are removed. We also call on the Attorney-General to extend the equal access cost protection model to all public interest cases,” said Maria Nawaz.
Contributors to the report say:
"We’re seeing the rich and powerful use the courts to silence others with litigation from mining companies targeting activists, to governments restricting protest rights, but ordinary people who face sex, race or disability discrimination can’t get the protection of the law because of the risk of paying the other side’s legal bill. Where’s the justice in that?" said Maria Nawaz.
“If people have experienced discrimination, or wrongful treatment at the hands of police, they shouldn’t have to risk debilitating financial insecurity to protect their rights. The government has an opportunity to ensure that people pursuing justice for themselves and others in the community are able to do so without immense financial risk,” said Michelle Cohen, Principal Solicitor at the Public Interest Advocacy Centre.
"Our clients are discriminated against at work. Many have strong claims, but the risk of having to pay the other side’s legal costs stops them from seeking justice through the court. The government has a real opportunity here to ensure that all workers feel safe to pursue justice and right wrongs,” Sharmilla Bargon, Senior Solicitor, Employment Law Practice, Redfern Legal Centre.
"Too often civil society, community groups and people who are fighting to uphold the law and protect the environment and their communities are scared away from pursuing justice because of the risk of losing it all when against governments and big corporations. 30 years ago the Australian Law Reform Commission recommended changes to the costs system so more people could advocate for their rights through the court, the government must implement this reform for all public interest cases so those who are seeking to right wrongs through the courts are able to do so," said Nicole Sommer, Director, Healthy Environment and Justice, Environmental Defenders Office.
The Equal Access model removes the adverse cost risk for people bringing public interest cases, except in limited circumstances. This would shift the financial burden of running public interest cases from the applicant to the respondent, who often has significant resources as a government or major corporation.
Available for comment
Maria Nawaz, Acting Executive Director, Grata Fund
Media contact: Belinda Lowe 0428 805 696