This week John Steenhof, Principal Lawyer at HRLA, appeared before the Senate Legal and Constitutional Affairs Committee to speak against the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, which applies to claims brought under federal discrimination legislation.

HRLA made a submission to the inquiry late last year, arguing that the Bill is flawed and should be shelved.  

Appearing before the Committee, John explained that the proposed laws remove the court’s discretion to award costs in a way that best serves the interests of justice. It also encourages discrimination proceedings to be brought when they never should be, including proceedings motivated by animosity towards religion. If it were to become law, the Bill would introduce a serious imbalance between those making discrimination claims and those defending them in the way legal costs of the action are borne. It could seriously upset the dynamics of these disputes at great cost to those facing allegations of discrimination.

In particular, these proposed changes pose a direct threat to Christian organisations, especially Christian schools, who have long been the target of media condemnation and strategic lawfare. This is because if a Christian (or other) organisation successfully defends a claim, it would be unable to recover its costs in the usual way, as the winning party, simply by virtue of it possessing what the Bill calls “a significant power advantage” or “significant financial or other resources” relative to a litigant or in an individual capacity.

As HRLA argued in its submission, the proposed laws would strongly favour claimants over those defending discrimination claims, making it easier for legal actions to be brought without merit, while placing excessive financial burdens from the start on those forced to defend them.

The Bill has the potential to incentivise activist-driven litigation aimed at eroding the rights of parents and religious communities, further marginalising faith communities and restricting their ability to freely practise and express their beliefs. 

The Committee is due to report on its findings by 9 February 2024.