7th Nov 2022, 1:13 PM – Representatives Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 - Consideration in Detail - Omit schedules 4 & 5

The majority voted in favour of disagreeing with amendments introduced by Berowra MP Julian Leeser (Liberal), which means they failed.

Amendment text

(9) Schedule 4, page 22 (line 1) to page 25 (line 12), omit the Schedule.

(10) Schedule 5, page 26 (line 1) to page 28 (line 28), omit the Schedule.

What did the amendments do?

Regarding amendment (9), Mr Leeser explained that:

These amendments deal with representative actions and costs orders. Schedule 4 of the bill seeks to amend the Human Rights Commission Act to make it easier for unions and other representative groups to bring representative claims in the Federal Court. The amendments would allow bodies to commence legal proceedings on behalf of other parties rather than the aggrieved person taking the matter for themselves. The Australian Chamber of Commerce and Industry has explained why this provision is not necessary. The ACCI has argued that representative groups are not prohibited from providing financial or legal support to parties pursuing a representative proceeding in the courts. Rather, they're simply prevented from commencing the proceedings on their behalf. It's not clear how allowing trade unions to commence legal proceedings on behalf of aggrieved persons would lead to better outcomes for these persons, especially in light of support that representative groups can already provide.

Fundamentally, litigants in representative actions need to be aggrieved persons, not bodies that represent or merely purport to represent their interest. This is how the existing avenue for class actions rightly operates. The interests of representative bodies do not always align with those they represent. Allowing these bodies to commence and run representative actions on their behalf could lead to the aggrieved person's interests being neglected in favour of other motives, such as a desire for a more lucrative settlement or political objectives. Further, representative bodies are not those whose reputations, finances and relationships are vulnerable during litigation. Allowing representative bodies to be the party instructing lawyers on the running of legal proceedings risks the pursuit of interests that are unrelated to those of the affected individuals.

Regarding amendment 10, he explained that:

In relation to costs, in schedule 5 the bill inserts a cost-neutral arrangement into the Human Rights Commission Act. This means that parties are expected to bear their own costs, with courts having power to make an alternative determination, considering the factors in the legislation, including: the financial circumstances of each party to the proceedings; the conduct of the parties, including conduct dealing with the commission; whether any parties have been wholly unsuccessful; whether any party has made an offer in writing to settle; whether the subject matter of the proceedings involves an issue of public importance; or any other matter the court considers relevant. We think discretion as to costs best sits with the court, and our amendments will remove schedule 5 of the bill and leave costs determinations at the discretion of the court, with the principle being that costs follow the event.