New law helps harassment victim-survivors get fairer access to justice

Victim-survivors of workplace sexual harassment in Australia can now seek justice more easily and take legal action against perpetrators without the risk of financial hardship, due to new federal legislation championed by unions.

The federal government’s Cost Protection Bill has removed one of the main deterrents that victim-survivors face when considering court action – the risk of being burdened with the other side’s legal costs, which can lead to significant debt or bankruptcy.

The new model applies to all Commonwealth sexual harassment and anti-discrimination laws and restricts courts from ordering applicants to pay respondents’ costs, except in limited cases. The IEU is all too aware of these types of cases.

In the previous edition of The Point we reported on the increasing prevalence of harassment and misogyny perpetrated by students against staff, including a concerning rise of image-based abuse including sexually explicit ‘deepfakes’.

David Brear, General Secretary of the IEU Victoria Tasmania said, ‘victim-survivors of workplace sexual harassment now have a fair chance to seek justice without the fear of financial ruin holding them back. This is a significant step forward in holding perpetrators accountable and creating safer workplaces for everyone.

‘The IEU commends the federal government for their commitment to implementing the full set of recommendations from the landmark Respect@Work report, including new cost protection measures for victim-survivors pursuing justice’.

The Respect@Work report stated that the ‘risk of a costs order (against a complainant) acts as a disincentive to pursuing sexual harassment matters in the federal jurisdiction’.

The ACTU, along with National Legal Aid and community legal centres, was part of a group of over 85 organisations known as the Power to Prevent coalition, which advocated for the new cost model.

In its submission to the Senate committee on the issue in February, the ACTU said: ‘Despite nearly 3 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’.

The union movement’s research further suggests that only one in 230,000 victim-survivors of workplace sexual harassment bring proceedings to Australian courts.

ACTU president Michele O’Neil welcomed the bill’s passage, saying that ‘no worker should be priced out of justice’.

‘This is a massive step forward in holding perpetrators accountable and making workplaces safer for everyone,’ she said. ‘Every day, in every sector, in every part of the country, unions represent workers experiencing harassment and discrimination at work.’

Mitchell Skipsey, Senior Solicitor at the Justice and Equity Centre (JEC) said the new laws were ‘a game changer’.

‘No matter how strong the claim, no court case has a 100% chance of success – there is always risk. Now, more people will have the opportunity to seek justice after unlawful treatment.’

Skipsey said discrimination claims can be ‘a David and Goliath battle’.

‘Individuals, who might already be in vulnerable positions because of their race, sex, disability or other attributes, are often pitted against large corporates or government agencies with vast resources and budgets for legal fees. This change helps to level the playing field.’

The Sex Discrimination Commissioner, Dr Anna Cody, welcomed the fulfilment of all 55 recommendations from the Respect@Work report, calling the laws ‘a monumental achievement for Australia’.

‘It marks a transformative moment in our nation’s journey towards creating safer, more inclusive, and respectful workplaces,’ she said.

‘Each recommendation was designed with the goal of addressing and preventing workplace sexual harassment. To see them all being actioned is a profound step forward in helping shape workplaces where respect is at the core, so every person feels safe, valued, and empowered.’

National Legal Aid executive director Katherine McKernan noted that Australia ‘still has unacceptably high rates of sexual harassment, and it is important that people who are disadvantaged can access justice if they experience discrimination’.

‘This change is especially important for individuals in low-paid and precarious employment, which often translates to lower awards of compensation that are quickly eroded by legal costs in litigation,’ she said.