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by Michelle Pearse

On 19 September, the innocuously titled Australian Human Rights Commission Amendment (Costs Protection) Bill 2024 passed in federal Parliament.

This measure was sold as a way to fight sexual harassment. It will keep federal courts from ordering victims to pay their opponent’s legal fees if they lose. It was argued that fear of being burdened by legal costs keeps many victims of workplace harassment from lodging complaints.

“The lack of certainty around costs means that, even when they win, there is no guarantee a victim-survivor’s costs will be covered,” said ACTU president Michele O’Neil. “By removing this barrier, low-income and vulnerable workers will be empowered to seek justice for encountering workplace sexual harassment.”

But the Costs Protection Bill is not innocuous. It could have serious consequences for religious institutions. It is not about minor procedural adjustments. It will inevitably lead to vexatious complaints.

Double Whammy

Prime Minister Anthony Albanese caused consternation amongst faith groups in August when he announced that he would not honour Labor’s pre-election commitment to progress the now-defunct religious discrimination (RDB) bill. That bill was settled in almost every detail and had bipartisan support before Labor came to power in May 2022. It has been neglected by Labor since then – and now it has been pulped.

The Prime Minister gave several reasons for his decision. He blamed the Opposition for not fulfilling its role in how he wanted an RDB played out. He blamed the “timing” – by which we can take him to mean the timing of an impending federal election.

He also blamed the risk of “divisive debate relating to religion and people’s faith”, which does not mean support for them but the opposite. He would rather lose favour with religious groups by throwing away the minimal rights protection they were promised in an RDB, than risk the ire of activists. “Divisive debate” is code for his reluctance to choose between religious followers or secularist activists.

The reason religious communities might consider it miserly of the Prime Minister to walk away from such a clear commitment to the RDB is that they were asking for so little. The RDB would have represented only a nudge in the right direction for people of faith. It would still fall short of the basic international treaty requirements Australia agreed to meet in support of its religious communities.

The connection between that RDB and the Costs Protection Bill became clear in what followed in the same week as the Prime Minister’s announcement. It reinforces the impression that this government is committed to undermining, rather than promoting, the interests of people of faith in Australia. In a double blow delivered against Christian schools, Labor progressed the Costs Protection Bill in the Senate within three days of calling time on the RDB.

Enabling Malicious Litigants

The impetus for the Costs Protection Bill is said to be a recommendation in the Respect@Work Report, retrieved from distant memory, which (unlike the Costs Protection Bill itself) is modest and sensible. That report recommended minor adjustments to the way legal costs are awarded in workplace sexual harassment claims, by addressing financial and other power imbalances that created injustice for claimants in situations exposed by the #MeToo movement.

However, the Costs Protection Bill will strengthen the arm of complainants in discrimination claims in far-reaching ways that Respect@Work never contemplated. It will apply to all claims under federal anti-discrimination laws.

The Costs Protection Bill will enable claims to be made against Christian schools without the ordinary risk that if the claim fails, the claimant would have to pay the legal costs incurred in defending the claim.

This opens the way for relatively cost and risk-free lawfare. It’s a very obvious consequence. In a submission to the government earlier this year, the Law Council of Australia predicted that the bill could result in “large numbers of applicants bringing unmeritorious and protracted litigation without sufficient incentives to ensure efficiency within the justice system”.

It will be particularly hard on Christian schools because they are charities funded mainly by parents with no budget for this eventuality. The bill now prevents judges making costs orders in the usual way, in the interests of justice.

The Costs Protection Bill will, therefore, have a destructive effect on religious schools. It will compound the damage inflicted by the Australian Law Reform Commission’s recent inquiry into religious educational institutions and antidiscrimination laws, because of its terms of reference that preordained the removal of the exemptions in discrimination laws on which religious schools depend.

The Labor Government has aligned itself with radical critics of religious belief. It is astonishing that so little comment has been made about this crippling blow to religious freedom in Australia.

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Michelle Pearse is CEO of the Australian Christian Lobby.

Republished with thanks to Mercator. Image courtesy of Adobe.