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Senator Penny Wright's motion to disallow Government's divorce tax

Penny Wright 12 Aug 2015

Senator WRIGHT (South Australia) (16:30): I rise to speak on this disallowance motion of the government's court fees, which I have co-sponsored with Senator Collins and the Labor Party today. As everyone in this place would be aware, on 24 June this year I moved a successful disallowance motion, as the legal affairs spokesperson, on behalf of the Australian Greens that should have put an end to this government's blatant attempt to raise revenue at the expense of Family Court users, including women and families at risk of violence. It should have knocked out once and for all this government's greedy and cruel divorce tax-their way of slugging people going through family breakdown a further $350 to obtain a divorce. But, sadly, in an almost unbelievable act of-and I will not use swear words, but people might know what I mean-legal trickery and cynical politics, this government and the Attorney-General tabled almost exactly the same regulation that was voted down by the Senate, which would increase the same range of Family Court fees to the same extent but with the addition of a further $5 in some cases. So, at best, this is a flagrant disregard of the decision of this Senate and, at worst, it is an illegitimate attempt to reintroduce a regulation that is the same in substance as that which was disallowed on 24 June 2015.

The Labor Party is currently testing the legality of the government's actions in the Federal Court. I predict that the court will find that the regulation that was reintroduced by the government will be substantially similar to the regulation that was previously disallowed and I predict that it will be struck down by the court. In the meantime, however, this move by the government has created confusion, chaos, and countless families in breakdown have been paying hundreds of dollars more at registries across Australia to access legal services that they and their children desperately need. What a way to do business! What a way for the Attorney-General, the principal legal officer in this country, to act!

Family court registries are suffering under the serious and confusing uncertainty this government's legal trickery has brought about. In fact, the day that the regulation was introduced, there was chaos in the registries as people turned up expecting to be paying one thing because of being aware of the decision by the Senate to disallow the previous regulation and were then informed by hapless court staff that the cost had indeed gone up again. So the fees went up, went back down again, went back up and now, if this disallowance is passed, they will go down again. How is this fair? How is this clear? How is this an appropriate way to run the country? What does this achieve? How long will this go on? Surely now is the time to act decisively on this issue. It is time to offer clarity to families using the Family Court who are already often in a state of distress because of the circumstances that are bringing them to the necessity to rely on the court. How will it bring clarity to families? It is important that they understand that the fees will not go up by 40 per cent and bounce around again while the government works out another way to sidestep the law and the clear will of the Senate.

But perhaps I should remind everyone in this place why the issue at the base of this, the cost of access to justice, is so important. We know that the cost of legal proceedings, the cost of access to the law, is the most common barrier for people in Australia now seeking legal help. Court fees are already too high. When it comes to accessing justice, which is a fundamental aspect of having a country where the rule of law is respected and that people can get equal access irrespective of the size of their wallet and only based on the merit of their claim—the people being failed by this government's policies and funding decisions are not just those who are suspected of or charged with some kind of wrongdoing or an offence. These people who are now having trouble accessing basic justice include the most vulnerable and innocent among us, such as children who are experiencing poverty and family violence or women experiencing domestic or sexual violence, for instance, in remote communities. They also include the most ordinary people among us—families who want to clarify guardianship arrangements for their elderly parents, divorcing couples wanting to finalise property settlements or arrangements for the care of their children, or neighbourhoods who are seeking to protect their local environment from harm or degradation.

Over and over again under this government we have seen cruel and counterproductive funding cuts that slice away at the fabric of access to justice in Australia, totalling well over $40 million since the election of this government. We have seen community legal centres and legal assistance services forced to turn away more and more people who are in need. Courts and tribunals have felt the squeeze of so-called efficiency strategies. It beggars my understand what is efficient about forcing people into a situation where they have to be self-represented or are not able to access justice at all with the flow-on costs that come from unmet legal need. There is nothing efficient about that at all. We are seeing mandatory sentencing policies and other legislative changes designed to remove lawyers and limit judicial discretion. This is the form that this particular government has. This is the form that this Attorney-General has. The result is, at best, a cruel and confusing system that fails to take into account individual experiences and leaves people in Australia without the help they need to understand what the law is and how the system works and, at worst, we are left with a system that leads to unfair outcomes, particularly for those who are not privileged enough to obtain private legal advice—leaving young people institutionalised, families torn apart and children at risk.

Let us cast our minds back.    In 2013, the Senate Legal and Constitutional Affairs References Committee, which I chaired at the time, commenced an inquiry, initiated by the Australian Greens, into the impact under the previous Labor government of higher Federal Court fees on access to justice. There was a great deal of interest in the inquiry from the legal community and a large number of submissions were received. The overwhelming consensus for participants in the inquiry was that the fee increases, at that time, were largely unreasonable and inhibited access to justice.

Indeed, it is very interesting to note that the then shadow Attorney-General, Senator George Brandis, went out and decried the Labor government court fee increases and, in fact, was talking about the then Labor government's disguised divorce tax. So he was very, very loud and vociferous at the time about using the courts as a revenue-raising measure. However, interestingly enough too, as a result of the inquiry, the submissions and the evidence before the committee, the Australian Greens made a primary recommendation in our report from that inquiry that the 2013 fee increases should be wound back to the level which prevailed prior to 1 January 2013. Despite the shadow Attorney-General George Brandis's grandstanding at the time, in fact, the opposition at the time would not sign up to those recommendations. Do not look at what they do, look at what they say—that is what they would have us believe; in fact, look at what they do.

Despite widespread acknowledgement that rising court fees were hindering access to justice, not one of the recommendations from the 2013 Legal and Constitutional Affairs References Committee inquiry into court fees have been implemented. This includes a recommendation that relevant stakeholders from the courts and the legal profession should be consulted before any future changes to Federal Court fees.

In the 2013 inquiry, we also discovered that some Federal Court filing fees have tripled over recent years. This is nothing but a revenue-raising measure and an unfair tax on people who are unlucky enough to have to use the court system. Yet, here we are with this government now proposing further increases to court fees—up to 40 per cent in some cases.

The Australian Greens were particularly concerned about the $350 increase to divorce applications and the potential impact of that on women trying to leave domestic violence and family violence situations. People will understand there is a lot of discussion about family violence and there is a lot of rhetoric from the current government about the need to act. When we look at the actual practical implications of an increase like this, which will impede some women who need the closure of a divorce to end a violent relationship, when it will impede their ability to get that, you have to again say, 'Listen not to what they say, look at what they do.'

With the government fee increases, we have seen the cost of divorce applications rise from $845 to $1,195 in the first tranche of regulations and, of course, that will be even slightly higher under this second regulation that the government has now tabled. This will cause excessive and unfair delays to victims of domestic violence who will be seeking a divorce. In fact, the 2013 Senate inquiry into court fee increases found that higher court costs were indeed dissuading women who were trying to leave abusive marriages. There is evidence in that committee report for anyone who is interested in looking at it.

At a time when family violence is clearly on the national agenda, and rightly so, we must be making every effort, as a community and as a parliament, to protect victims of domestic violence and ensure that they have access to legal advice and to the courts. We have to put an end to the scourge of family violence in this country. Increasing divorce applications by $350 or more will make it even more difficult for women in abusive marriages to leave.

The changes to these Family Court fees, particularly the divorce application fee, are cynical when you realise there is no option for divorcing parties to avoid the courts. It is not as if they can be encouraged to somehow settle their legal differences or their legal claim in any other way. The only way to get a divorce in Australia is to go to the Family Court, make an application and pay for it. So even when they reach an agreement, even when there are consent orders, there is a fee imposed, and there is an increased fee now under these government regulations.

The Australian Greens say that it is completely inappropriate for the government to use family breakdown as a cash cow. While the government has tried to justify these huge fee hikes by suggesting that the money will go to improving court facilities, looking at the truth of the situation only a minor proportion of the $87 million that was predicted to be raised will actually be re-invested in the courts. Only $30 million will be spent on improvements to holding cells and to the safety of child dispute conference areas.

Many legal stakeholders have opposed the fee increases on the grounds that they will significantly impact on low- to middle-income Australians and small- to medium-sized businesses that do not qualify for legal aid or any fee exemption or waiver. They also say these increases are unreasonably large and not justified by any rational policy objective, because really it is just about raising revenue. They are not supported by evidence that changes to fees will advance the government's policy objectives. Legal stakeholders say that these fees will impose an unreasonable barrier to accessing justice by making access to the Federal Court contingent upon the capacity of litigants of various means to meet the substantial additional cost of litigating. The impact on litigants will be inequitable and they will establish a regime which disproportionately impacts on those who have more limited financial means. So we will move, increasingly, to an Australia where justice is as good as you can buy, as good as you can afford, irrespective of the merits of your case.

On that basis, I want to conclude by saying that I urge everyone in this place to support this disallowance and to remain resolute in their commitment not to let this arrogant and unprincipled government take us and the users of the Family Court for granted.

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