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Thursday, 23 September 1999
Page: 10380


Mr WILLIAMS (Attorney-General) (1:05 PM) —I am aware that some members of the disability community would have preferred a different costs regime to apply in cases before the Federal Court and, of course, we were aware of the Australian Labor Party's position. However, the government remains firmly of the view that the maintenance of the existing Federal Court regime offers the best outcome for people with disabilities—indeed, for all those protected by the human rights and antidiscrimination legislation.

I would like to outline again the basis for this view. I noticed the member for Barton read from a news release from a couple of disability groups. The approach taken by those groups is simplistic, and I do not believe they fully understand the ramifications of what they are saying. And we have no criticism of the Democrats whatsoever for taking a different view. As far as we are concerned, they acted in complete good faith in our negotiations with them. I should mention at the outset that we have undertaken that the Attorney-General's Department will review the impact of the cost regime on human rights cases within the next three years, in the light of experience.

Under the current system, the court has the discretion to order costs in relation to actions to enforce determinations of the Human Rights and Equal Opportunity Commission. Section 43 of the Federal Court of Australia Act provides that the awarding of costs is at the discretion of the court or judge. This leaves it open for the court to award costs in favour of a party where the circumstances or merits of the case warrant such an approach.

Lawyers are, in fact, more likely to take cases on under a costs follow the event regime as such a regime will encourage contingency fee arrangements. As the commission has noted, parties have often been unable to secure legal representation for proceedings in the commission because it is a no costs jurisdiction. The same outcome would result in the Federal Court under the opposition's preferred amendment. The opposition's amendment appeared to be modelled on provisions in the Workplace Relations Act for the award of costs in certain types of proceedings under that act, and provides for costs to be awarded against a party who makes a frivolous or vexatious application. The provisions in the Workplace Relations Act, however, follow from a different costs regime. They make no sense in this context, and the outcome for complainants would be exactly the same as under our proposals. With the usual Federal Court cost regime applying, an applicant who makes a frivolous or vexatious application would pay the costs under a costs follow the event regime because they would lose their case.

The wide discretion available for the Federal Court under section 43 of the Federal Court of Australia Act allows the court to take any considerations into account that it considers appropriate in making a costs order. Although there are special rules for workplace relations cases, there is no justification for treating human rights litigants in any manner differently from others. The respondent may well be a small business or an employee who, for example, has been accused of sexual harassment and, therefore, may have no greater resources than an applicant. It is preferable in those circumstances to leave costs issues to the discretion of the court so that these issues may be addressed.

A concern has been raised that public interest test cases, particularly where there is a lack of precedent in relation to a particular question of law, might be discouraged by the normal rule that costs follow the event. In relation to this issue, the government would point to the ability of the commission to act as amicus curiae to assist in such cases. In addition to this, people suffering from financial hardship will be entitled to apply to the Attorney-General for financial assistance to run court proceedings in human rights matters.

The proposed Federal Magistrates Service will have jurisdiction over human rights complaints which have not been satisfactorily conciliated in the commission. One of the attractions of the magistrates service is that it will keep costs down for litigants. It will utilise streamlined procedures and a less formal judicial culture, which should allow for quicker resolution of cases and will act as a factor to reduce costs. Many litigants in the human rights jurisdiction are expected to be unrepresented, and they will also be helped by the simplified procedures.

These factors should help reduce legal costs and result in savings for litigants both in terms of time and money. It is envisaged that most human rights matters will be able to be dealt with in the more informal Federal Magistrates Service environment. The Human Rights and Equal Opportunity Commission and the Law Council of Australia both support the government's position on costs. (Extension of time granted)

In addition, this bill envisages a scheme where court costs would be reduced because of the emphasis on informality initiatives to reduce costs, which include that the commission may assist an applicant to prepare his or her court application forms—and the court is developing simplified forms. In addition, HREOC commissioners may appear as amicus curiae with leave of the court.

The government has listened and responded to the concerns of the disability community in relation to the fees which apply to matters in the Federal Court. We welcome Labor Party support for that situation. In response to the concerns, the government has reached an agreement with the Australian Democrats to provide that the only fee to apply to human rights cases in the Federal Court will be a flat rate of $50. This will provide a significant up-front saving to human rights complainants.

In concluding and in commending the amendments to the bill to the House, I would call on those disability groups which make such vigorous representations to all parties to carefully consider what it is that they seek to achieve because in some cases—and this bill has been an example—what they seek to achieve is not necessarily going to be achieved by what they seek to have the government do.

Question resolved in the affirmative.