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The impact of higher Federal Court fees on access to justice - tabling of committee inquiry report

Speeches in Parliament
Penny Wright 18 Jun 2013

Senator WRIGHT (South Australia) (18:27): I present the report of the Legal and Constitutional Affairs References Committee on court fees, together with the Hansard record of proceedings, minutes of proceedings and submissions received by the committee.

Ordered that the report be printed.

Senator WRIGHT: by leave-I move:

That the Senate take note of the report

I am pleased to speak about the findings of the Legal and Constitutional Affairs References Committee inquiry into court fees, both as the initiator of the inquiry, as the legal affairs spokesperson for the Australian Greens, and as the chair of the committee. The Senate referred this matter to the committee on 27 February this year. In moving for the inquiry, I was responding to serious concerns I had heard from a number of individuals and organisations in the Australian legal community who were fearful that increases in Federal Court fees in 2010 and further significant increases in 2013 were creating a barrier to justice.

Access to justice is the cornerstone of a fair society. We must properly fund and resource our legal infrastructure so it is available for all Australians, according to the merit of their claim and the need for the resolution of disputes they may have and not according to the size of their wallet. We currently see a crisis in our legal system which is increasingly threatening this important aspect of our rule of law in Australia. We have had report after report that ordinary Australians, both those who are disadvantaged and indeed middle-income Australians, are being priced out of the court system because they cannot afford legal representation and court fees. Recent reports indicate that half of all adult Australians will face a legal issue this year and approximately 500,000 Australians will miss out on essential legal services every year. We know that community legal centres and legal aid commissions are struggling to meet demand, that waiting lists are increasing and that approximately 24 cent of people who sought assistance from these institutions in 2010 and 2011, for instance, were turned away. We also know, from the Legal Australia-Wide Survey, the LAW Survey, that cost is the most common barrier to people seeking legal help.

It was against this backdrop and the documented social ills that arise from unresolved legal issues-poor health, homelessness, financial troubles, poor mental health, unemployment and lost productivity-that I heeded the voices of legal stakeholders such as the Law Council of Australia, various community legal centres and even the outgoing Chief Justice of the Federal Court, Chief Justice Patrick Keane, who were raising concerns about the degree to which the federal government's Federal Court fee increases were exacerbating the situation.

Sitting suspended from 18:30 to 19:30

Senator WRIGHT: This inquiry was therefore an opportunity to scrutinise what have been significant increases in Federal Court fees, to look at the rationale behind them, the effect they have had and what the moneys raised through the increases have been used for. The committee received 32 public submissions and held a public hearing on 17 May this year in Canberra.

Before I proceed to discuss the report further, I note that as chair I seek to work as collaboratively as possible and look to achieve agreement or consensus where possible. However, in this case, in weighing up the evidence received by the committee, I came up with a series of conclusions and recommendations which were not accepted by the government or opposition senators. So I have presented, separate from the report of the majority, my views and recommendations in my chairperson's report.

There is no doubt that Federal Court fees have undergone significant increases since 2010. In fact the increases both in 2010 and from 1 January this year, 2013, were unprecedented. The committee heard evidence from legal professional peak bodies, legal academics and representatives of legal assistance providers who have practical experience with clients at the coalface. The overwhelming consensus was that the recent fee increases were largely unreasonable and have inhibited access to justice. They have contributed to a bifurcated system of haves and have-nots and they have unduly impacted on individuals-particularly on the disadvantaged but also on middle-income Australians. As a result, my primary recommendation is that the 2013 fee increases should be wound back to the level which prevailed prior to 1 January 2013.

The committee also heard evidence of poor policy development and rationale for the increases. The fees were increased without any meaningful consultation with legal professionals or other relevant stakeholders. As a result, one of my recommendations is that there should be serious and systematic consultation with significant legal stakeholders and members of the legal profession before increases of this nature are undertaken in the future.

On the issue of the adequacy of consultation with relevant stakeholder groups, the committee heard evidence from submitters and witnesses that these increases were implemented without any meaningful consultation. It is my view that it is entirely inappropriate for government to introduce significant changes to court fee structures, which have effects on litigants and members of the community, without adequate consultation. My recommendation therefore is that any future changes to Federal Court fee settings be developed in close consultation with relevant stakeholders from the courts and the legal profession.

On the issue of cost recovery, the Attorney-General's Department informed the committee that a primary determinant underpinning the fee increases was an increase in the level of cost recovery. As a matter of principle, it is my view that the Federal Court should not be operated on a cost-recovery or user-pays basis and that access to the courts is a fundamental tenet of the rule of law and should not be determined by an individual's level of wealth.

The Attorney-General's Department also talked about the concept of price signalling and suggested that price signals were being used to direct litigants towards alternative dispute resolution and away from the courts and to deter unmeritorious litigants. Alternative dispute resolution is a fine thing and very appropriate in many situations, but it should always be undertaken on a voluntary basis. There should be no compulsion on people to settle because they cannot afford any other means of redress. Similarly, while deterring unmeritorious litigants is a worthy aim in itself, using cost and price to do it is a blunt instrument. The risk is that you will deter meritorious litigants just as much as you will deter those whose litigation may be vexatious or lacking merit.

Finally, I would like to discuss a particularly harsh aspect of the court fee increases which came to light through the evidence before the committee-that is, the cost of a divorce application. Together with abolishing any fee exemptions for divorce applications, the lowest amount to be paid by a person seeking to file for divorce was increased from $60-or from no cost at all in any case where a fee exemption applied-to $245, a 400 per cent increase. The committee heard evidence that this has had exceptionally harsh consequences for some low-income Australians, $245 representing about a week's income for someone living on Newstart. It has had a particularly harsh impact on women trying to leave domestic violence situations-women who need separation and the closure of relationships. The recommendation I have made is that a fee exemption be available for an application for divorce as for other family law matters. There was no rationale provided explaining why there was no fee exemption available in these circumstances.

A particular example which springs to mind about the harshness of this provision concerns a refugee. Her husband had been missing overseas for some years and is believed dead. She entered into a new relationship. She was unable to afford the divorce-she had no ability to save the money to file for divorce-she needed before having a child with her new partner. Culturally, that was very difficult for her. As I said, I have made a recommendation that a fee exemption be available for divorce applications as with other applications.

I would like to thank those who made submissions and those who gave evidence to the inquiry. I would particularly like to thank the secretariat of the Senate Legal and Constitutional Affairs References Committee for their hard work as usual and, in this case, a great deal of patience in the face of two extensions and quite a lot of work and consideration to come up, ultimately, with the majority report and my own chair's report as a result of this inquiry. I seek leave to continue my remarks later.



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