Proposed law may invite risk-free discrimination claims against Christian schools

Amendments to the Australian Human Rights Commission Act 1986 are set to have a profound impact on those having to defend discrimination claims in Australia by making them liable to pay the costs of those who brought the action in an extremely wide range of circumstances.

The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 would change the costs arrangements for parties in Federal Court discrimination proceedings. The bill, which purports to be in response to a particular recommendation of the Respect@Work Report regarding workplace sexual harassment, would apply to all discrimination claims in federal legislation, not just workplace sexual harassment.

It would change the general rule, which prevents misuse of legal process, that the unsuccessful party should generally pay the successful party’s legal costs. This is a matter of court discretion, so that justice is done in each individual case.

This is all set to change dramatically.

The bill affects differently the person who makes the allegations (so that their costs are paid by the one they accuse in a very wide range of circumstances), and the person who defends them (so that their costs can hardly ever be recovered, even when claims are brought vexatiously).

If discrimination claims succeed on any single ground, the person defending the claims must pay the costs of the person pressing the claims, even if the allegations are numerous and all fail, except in that single particular.

The bill also changes the position of the person defending discrimination claims. They have no such costs protection regime which requires their costs to be recovered. A person making a claim may be required to pay the costs of the respondent if the proceedings were instituted ‘vexatiously or without reasonable cause’. But the bill goes further, and removes that possibility for anyone accused of discrimination who may be said to have a relative significant power advantage or financial resources.

This is likely to catch Christian schools, whose dependence on exemptions under the SDA are under threat in the Inquiry into religious educational exemptions, and churches. By removing financial disincentives for parties to bring claims of discrimination, claims may be brought with little fear of the usual consequences for misusing legal process.

In reality, respondents such as Christian schools would very often be carrying the costs of a complaint brought by another party.

When combined with the proposed changes to remove protections in federal discrimination law for Christian schools, this bill increases the imbalance between parties and makes Christian schools even more vulnerable to expensive discrimination complaints for which they would be financially liable.

Christian schools should have the right to protect their Christian ethos and teach in accordance with their faith and Christian vision without bearing the costs of unmeritorious discrimination complaints.

HRLA continues to support Christian schools and other organisations seeking to maintain and uphold their Christian ethos without fear of discrimination claims.

The Senate Standing Committee on Legal and Constitutional Affairs is currently accepting submissions from the public in regard to the bill until 9 January 2024.

HRLA will be making a submission, and we encourage everyone who is concerned about this development to do the same. You can make a submission here.