Around the grounds – discrimination reforms in focus

The laws relating to discrimination in connection with work have been the subject of a range of developments in recent years, particularly with respect to sexual harassment and sex discrimination.

At a Federal level, those developments have included reforms in response to recommendations made in 2020 arising from the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work Report), such as the introduction of the positive duty. Not surprisingly, the winds of change in this space continue to blow and are bringing with them further reforms. We address some of these reforms below.

Costs protections at a Federal level

The Respect@Work Report included a recommendation to insert a cost provision into the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), aimed at limiting the awarding of costs against a party to circumstances where they instituted proceedings vexatiously or without reasonable cause, or otherwise caused the other party to incur costs through their unreasonable acts or omissions.

As a consequence of the Australian Human Rights Commission Amendment (Costs Protection) Act 2024 (Cth), the AHRC Act has now been amended to include a costs provision, however, it differs markedly from the Respect@Work Report recommendation. Importantly, the new provision requires the Court to order a respondent to pay an applicant’s costs in Federal discrimination proceedings (where they were commenced after 2 October 2024) if the applicant succeeds on one or more grounds against the respondent (the only exception being where the applicant’s unreasonable act or omission caused the applicant to incur costs in which case the costs incurred due to that act or omission will be excluded from the order). In contrast, if the respondent is successful in defending all of the grounds of the applicant’s claim, it won’t be able to recover its costs except if the Court determines that:

• the applicant instituted the proceedings “vexatiously or without reasonable cause”;
• the applicant engaged in an unreasonable act or omission which caused the respondent to incur costs; or
• the respondent did not have a significant power advantage over, and significant financial or other resources relative to, the applicant.

The stated purpose of this reform is to make Federal discrimination proceedings more accessible to applicants by minimising their risks of facing an adverse costs order. However, it may also have the effect of encouraging respondents, like employers, to settle, rather than defend claims, simply to avoid potential exposure to a costs order. It may also affect the approach taken by respondents in the defence of any proceedings, particularly if respondents resolve to avoid steps that might increase the applicant’s costs (such as making interlocutory applications) or which might expose them to further unrecoverable costs (including making any admissions).

Amendments to anti-discrimination laws in Queensland

Not to be outdone, Queensland also recently introduced some discrimination reforms, including for greater consistency with those made at a Federal level in response to the Respect@Work Report. The Respect at Work and Other Matters Amendment Act 2024 (Qld) was passed in September 2024 and, among other things, amends the Anti-Discrimination Act 1991 (Qld) by introducing prohibitions on, for example, harassment on the basis of sex and subjecting persons to a workplace environment that is hostile on the ground of sex, as well as introducing a positive duty on employers to eliminate discrimination, sexual harassment, harassment on the basis of sex, and other objectionable conduct. The positive duty is of particular note, because it is broader than the Federal positive duty, and extends to all forms of discrimination. While these reforms were due to commence on 1 July 2025, the new Queensland LNP government has announced that they will introduce an amendment to delay the commencement of these reforms. The purpose of the delay is to allow for further consultation on the legislation and to address potential unintended consequences of the reforms.

Associated WHS changes

Not surprisingly, and in recognition of the fact that sexual harassment can be a work health and safety risk as well as a discrimination risk, New South Wales, Tasmania, South Australia and the Northern Territory introduced in 2024 a Code of Practice relating to sexual and gender-based harassment (modelled on that which SafeWork Australia published in December 2023). Those codes set out a risk management approach towards ensuring health and safety by eliminating or minimising the risk of sexual and gender-based harassment so far as reasonably practicable. They also contain useful insights on the role of leaders in achieving a safe and respectful workplace that proactively manages these risks.

In addition, since September 2024, the Work Health and Safety regulations in Queensland have expressly recognised sexual and sex or gender-based harassment at work as a risk which businesses must proactively address and so, from 1 March 2025, there is a requirement that businesses in Queensland have in place a prevention plan to manage any identified risks arising from sexual harassment and sex or gender-based harassment at work. The plan must outline and assess the identified risks (to workers and others) and must include control measures to mitigate those risks. The plan must be reviewed if a report of sexual or sex or gender-based harassment is made, if requested by a health and safety representative, or otherwise every three years.

Potential for NDAs in Victoria

Moves are also afoot in Victoria to potentially restrict by legislation the use of non-disclosure agreements or NDAs in workplace sexual harassment cases. The proposal is in response to a Victorian Ministerial Taskforce on Workplace Sexual Harassment which found that NDAs are often misused to silence victims, protect employer reputations and hide serial offenders.

Public consultation on the proposal resulted in a number of submissions being received. The Victorian Government is now considering those submissions before determining next steps. Employers in Victoria should watch these developments with interest.