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Written by Sean Tyrell, PDA Associate Director Victoria
Many PDA members are aware that the Parliament has passed legislative amendments intended to make it easier for victims of sexual harassment, discrimination and victimisation to enforce our rights in the Federal Court. The law has been changed so that the payment of legal costs no longer follows the outcome of a case.
For many decades, the prospect of paying the other side’s legal costs if I lost a disability discrimination case deterred me from going any further than alternative dispute resolution. But over the past few months, I have gone forward with an application to the Federal Court for an Order declaring that the National Disability Insurance Agency contravened the Disability Discrimination Act by failing to make the reasonable adjustment of providing correspondence in accessible format. The PDA membership is perhaps one of the few audiences who won’t be surprised that I’m one of many blind NDIS Participants who gets sent his Plans and other vital information in print – despite my years of asking for it in a format I can actually read.
My reflections on how the cost protection amendments have changed things are mixed.
First, I’ve certainly found it true that Parliament limiting the other side’s threat to seek a costs order against me has significantly levelled the playing field. It has both made me a lot bolder in advocating for fair treatment while simultaneously focussing the other side on the need to resolve matters without a trial.
Second, it is early days and the impact of the costs protections amendments is still filtering through legal professionals. I’ve been advised that so far no one has asked a Judge to apply the new laws, and everyone is therefore waiting for someone else to go first. As a result, barristers are taking a careful line and advising clients to proceed with caution.
Third, as good as the cost protection amendments are they are not a silver bullet for overcoming the deeper problems with the Disability Discrimination Act 1992 and Australia’s other rights protection statutes. This might mean that all the Parliament has really done is make it easier for people with a disability to lose test cases that our community might assume we would win. While for many years I’ve listened to lawyers warn me about the dangers of an adverse costs order, I’m now hearing warnings that the definitions of direct and indirect disability discrimination are so narrow that it makes it virtually impossible to win.
Fourth and final – and somewhat contrary to all the above – the Court itself does give off a strong vibe that it wants to get more active in protecting the rights of Australians with a disability. To my utter amazement, within just a few weeks of me lodging my application I got a call from the Judge’s office advising he wanted to start hearing the case as soon as possible. A month or two after that the Court doubled down by connecting me with pro bono lawyers from a large and formidable firm. I’m also hearing reports that some Judges and Court employees have been undertaking disability confidence training.
In the end, the proof will be in the pudding. While there’s certainly been useful cases since Parliament passed the Disability Discrimination Act 1992, I think it’s fair to say physical disability is still waiting for our Mabo or Richardson v Oracle. Let’s see which member of our PDA community will be first to pick up a hammer and swing it with all her might.
