As the key architect of new costs protection, Grata Fund celebrates major reforms for victims of discrimination which passed the Senate today.
An Australian first, the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 that passed the Senate today is game-changing reform. Prior to today, so-called adverse costs forced victim-survivors of sexual harassment and discrimination to risk financial ruin as a prerequisite to seeking justice. Until now, Australia has been an outlier among similar jurisdictions internationally in not protecting against costs in these sorts of public interest cases.
Stark statistics speak to the impact - only 2% of sex discrimination matters, and 1 out of 10 meritorious public interest cases proceed to court. The Australian Human Rights Commission’s Respect@Work Report identified adverse costs as a significant barrier to victim-survivors holding perpetrators to account. Indeed, the ACTU’s submission to the Senate Committee on the issue in February reiterated this connection:
“Despite nearly three million Australians experiencing sexual harassment each year, only 11 cases are brought to court each year on average. This is a shockingly low figure. This is because the barriers to bringing claims are enormous, and many women make the very rational decision to not risk their financial future by pursuing a case in the courts.”
Having identified this Australian anomaly early in her career on a Churchill Fellowship, Grata Fund founder Isabelle Reinecke established the not-for-profit explicitly to relieve adverse cost barriers. Since then, Grata has backed many people and communities to bring landmark Australian public interest cases by providing indemnity protection for adverse costs, disbursement funding and other support, such as in the Australian Climate Case, the High Court housing rights win against the Northern Territory government for Santa Teresa residents, the legal battle to gain access to Robodebt documents, and Doctors4Refugees gag law challenge.
Today, Reinecke says,
“This is one of the most significant reforms to access to justice in a generation. For us at Grata, adverse costs reform is foundational. 7 years ago we made it our mission to underwrite cases of national importance against adverse costs and pursue costs reform.
Courts are a critical pillar of democratic participation as they enforce our Parliament’s laws. There is no point in having laws if people aren’t able to access and enforce them. Ensuring that courts aren’t just the realm of a wealthy few means that all communities have the opportunity to hold governments and corporations accountable and enforce and enjoy our rights.”
Maria Nawaz, General Counsel at Grata Fund, who has practised discrimination law for more than a decade, crafted the costs protection model that passed today.
“Over the course of my career I’ve seen too many women forced into silence over pursuing justice for sex discrimination because the cost risk is simply too high. I can’t overstate the significance of this reform, it will mean victim-survivors of sex, race, age and disability discrimination will be able to enforce the laws that are supposed to protect them - everyone in Australia benefits.”
BACKGROUNDER
About the adverse costs reform
The reform legislation covers all areas of discrimination, where there are similar issues caused by adverse costs risk. It also recognises the intersectional nature of discrimination, which often happens along multiple lines (race, sex, disability, age) at once. This reform brings Australia in line with global best practice, including that of the South African Constitutional Court, which introduced this principle in 2009 for Constitutional matters, including cases concerning the rights of women, children, and the environment, and freedom of expression and belief. Adverse costs will still be the norm in Australia in cases not involving discrimination.
The path to legislation
Following multiple sexual harassment scandals in Parliament, the Australian Human Rights Commission (AHRC) Respect@Work Report in recommendation 25 (Rec25) identified that adverse costs are a significant barrier to victim-survivors holding the perpetrators of sexual harassment and discrimination accountable, and recommended a 'no costs' jurisdiction (if you win, you still pay your own costs but not the costs of the other side). In response, Grata pointed out that ‘no costs’ simply shifted the barriers as it reduced the likelihood of victim-survivors securing legal representation (lawyers often operate on a no-win, no-fee basis for victim-survivors). ‘No costs’ would also put further financial pressure on the community legal sector and would see perpetrators of discrimination unfairly relieved from adverse costs.
To overcome this, Grata engaged with parliamentarians, the Attorney General’s Department (AGD) and the AHRC and proposed an Equal Access Model. This model rebalances the power between complainants and respondents: freeing complainants from the risk of costs; but holding respondents accountable by ensuring they do pay costs if they break the law. This reform was soon supported by a wide alliance, known as the Power to Prevent Coalition.
Senate Committee hearings followed in early 2024. Grata Fund, the Justice and Equity Centre (formerly PIAC), National Legal Aid, the Australian Discrimination Law Experts Group, Kingsford Legal Centre, People with Disability Australia, Australian Lawyers Alliance, ACTU, SDA, Equality Australia and more all supported Grata’s Equal Access Model and presented compelling stories of costs impacts and the inability of the discrimination system to function properly without reform. On 9 February 2024, the Senate released its report and recommended the Bill to be passed.
About Grata Fund
Grata is a not-for-profit based at the University of NSW supporting and realising public interest cases focussed on human rights, democracy and climate justice, including the recent high profile Australian Climate Case. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks. Grata removes the enormous financial barriers to court and supports people and communities facing injustice to integrate litigation with strategic movement-driven campaigns. As Grata’s Executive Director, Isabelle Reinecke leads collaborations with some of the nation’s top legal minds, civil society organisations and community advocates to advance and protect rights and freedoms. She is a lawyer, the author of Courting Power: Law Democracy and the Public Interest in Australia and an expert in the intersection of the law, politics and power.
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