Ivana Bacik (Independent)

I thank the Minister of State for taking the time to respond on the arguments made by Senator Norris and me. The provision may have a chilling effect, even though this is not the intention of the Minister of State. Subsection (4) which changes the entitlement of the court to award costs in favour of a party significantly raises the bar in terms of when costs can be awarded. I do not practise in this area, but many who do, particularly barristers, do pro bono work. It is asking a lot of a solicitor who may have significant overheads in running a case such as this to bear these costs or to insist that litigants bear their own costs because there will be no prospect of winning unless one gets over this very high bar. Subsection (4) may have the unforeseen chilling effect of preventing or obstructing litigation other than by those who have sufficient money to bear their costs. I accept the points made by the Minister of State that in most cases it will prevent costs being awarded against people. That is an advance, but subsection (4) sets the bar too high.