This Budget Review Backgrounder reviews Commonwealth funding of courts and tribunals over the 2008-2009 to 2013–2014 financial years. It is confined to funding provided through the Attorney-General’s portfolio of: the Administrative Appeals Tribunal (AAT), the Family Court of Australia, the Family Court of Western Australia, the Federal Court of Australia, the Federal Magistrates Court of Australia (now known as the Federal Circuit Court of Australia), the High Court of Australia and the National Native Title Tribunal.
In the latter part of the period under consideration, a review was conducted into the federal courts and tribunals (the Skehill Review). For the courts and tribunals listed above, excluding the High Court, the review considered ‘options for improving efficiency and flexibility in court and tribunal administration …’ For all courts and tribunals, the review also considered the ‘potential for shared services and administration arrangements between the tribunals within the Attorney-General’s portfolio and administrative review bodies in other portfolios’.
The review report said:
… the data provided to the Review by the Courts suggests, on the face of it, that there are questions to be addressed in relation to the ongoing financial viability of the Courts at current activity levels and on the basis of current spending levels and practices.
One outcome of the review was the passage of the Courts and Tribunals Legislation Amendment (Administration) Act 2013 (the Courts Act 2013) that facilitates the transfer of appropriations, staff and some administrative functions of the Native Title Tribunal to the Federal Court and enables the merging of the administrative functions of the Federal Magistrates Court with those of the Family Court. The judicial functions of the courts remain separate with the Family Court hearing the more complex family law matters and the Federal Circuit Court hearing the remainder as well as matters in other federal jurisdictions. Further information on the Skehill Review and related developments can be found in the bills digest for the Courts Act 2013.
These changes should be borne in mind when comparing funding for these courts and tribunals before and after the changes were effected.
In a 2009 speech, the Chief Justice of the High Court, Robert French, said of court funding:
…The provision of public moneys to the courts is necessarily founded upon value judgments about their functions in the maintenance of constitutional arrangements, the rule of law and the provision of access to justice for individuals, organisations and governments.
If these larger considerations are not taken seriously a reductionist approach characterised by a kind of simplistic economic rationalism may cause inappropriate funding decisions to be made or inappropriate conditions to be attached to funding. Any model which treats the courts as competitors in a market for the provision of dispute resolution services requires particularly close scrutiny. That having been said, the community, through its elected representatives, has every right to require that measures are in place to ensure that public resources allocated to the courts are used efficiently and that their use is capable of intelligible explanation and justification.
In 2008–09, the High Court’s funding was $17.8 million rising to $19.4 million in 2011–12. The 2013–14 Budget provides funding of $20.4 million.
In 2010–11, in addition to its normal funding, the High Court received an equity injection of $8.4 million, which included $4.3 million to fix safety and structural issues around the building, which had been the subject of some criticisms.
In 2008–09, the Federal Court’s funding was $107.3 million and $108.4 million in 2011–12 with little movement in the intervening years. The 2013–14 Budget provides for funding of $128.5 million. However, following the Skehill Review, many of the functions of the Native Title Tribunal have been transferred to the Federal Court, such as the mediation of native title claims.
The 2013–14 Budget provides $10.8 million over four years for the appointment of three additional judges, and support staff, to the Federal Court to ‘reduce waiting times and improve access to justice’.
The funding for the Family Court was $139.8 million in 2008–09 and $164.1 million in 2010–11. The 2012–13 Budget provided funding of $121.4 million.
In support of their contribution to the Skehill Review, the Family Court and Federal Magistrates Courts commissioned a ‘financial health check’ by Oakton Consulting. Subsequently, the Family Court annual report records that ‘the courts [sic] resources were optimally deployed and that there were no obvious areas from which to achieve further savings without significant reductions in services to clients’.
Federal Circuit Court
In 2008–09 funding for the Federal Magistrates Court, as it was then called, was $80.6 million rising to $95.9 million in 2010–11. The 2012–13 Budget made provision of $101.4 million. In its annual report, the Federal Circuit Court makes the same point as the Family Court, following the Oakton financial health check. The Australian Government has indicated it will work with the court to address these pressures.
Merger of functions of Family Court of Australia and Federal Circuit Court
Following the merger of some functions of the Family Court and Federal Circuit Court after the Skehill Review, the funding for the two courts in the 2013–14 Budget has combined into a single agency under the Financial Management and Accountability Act 1997 (Cth).
The 2013–14 Budget provides $200.2 million in funding for the combined Family Court and the Federal Circuit Court.
Family Court of Western Australia
Funding for the Family Court of Western Australia increased from $13.5 million in 2008–09 to $20.7 million in 2010–11, but fell to $12.6 million in 2012–13. As for the Family Court, the change from 2011–12 to 2012–13 is due to changes in the arrangements for funding and management of the Commonwealth Law Courts buildings, including the transfer of certain functions to the Department of Finance and Deregulation.
The Chief Judge of the Family Court of Western Australia stated in the 2010–2011 Annual Review that the court ‘continues to struggle to maintain an acceptable level of service in the absence of an acceptable level of funding’, where the revised funding for that period was $20.7 million for that Budget year. The $12.9 million funding in the 2013–14 Budget is set at a similar level to that in the previous year—$12.5 million—despite these criticisms (these figures exclude expenses not appropriated in the respective Budget years).
Administrative Appeals Tribunal (AAT)
In 2008–09, the AAT’s funding was $34.3 million. The 2013–14 Budget provides funding of $39.1 million.
In the 2013-14 Budget, funding of $3.8 million is provided in forward estimates to support the AAT function of reviewing certain decisions of the NDIS Launch Transition Agency under the National Disability Insurance Scheme Act 2013 (Cth).
National Native Title Tribunal (see also section on Federal Court)
In 2008–09, funding for the National Native Title Tribunal was $32.2 million. In 2011–12, it was $26.5 million. Its funding in the 2012–13 Budget was transferred to the Federal Court from 1 July 2012. Its functions for 2012–13 were allocated $12.3 million, a significant drop from previous years that should be considered in the context of the Federal Court absorbing many of the functions of the tribunal.
In the 2013–14 Budget, the Federal Court has received $13.6 million as an unspent prior year appropriation transferred from the tribunal.
Figure 1 – Funding to courts and tribunals by contribution to their Budget Outcomes
Note: The graph includes non-appropriated expenses, and the figures have been adjusted for CPI increases with 2012–13 as the base year.
Source: Parliamentary Library estimates (derived from various annual reports and portfolio budget statements)
 Ibid., para. 4, p. vii; So far as is relevant to the courts and tribunals, other than the High Court, the relevant term of reference in full is “With regard to the federal courts and tribunals in the Attorney-General’s portfolio, the review will consider options for improving efficiency and flexibility in court and tribunal administration, including service delivery, whether the courts and tribunals are financially viable in their current form, including options for improving shared services and administration arrangements.”
 Ibid., para. 5, p. vii.
. RS French, Chief Justice, High Court of Australia, Boundary conditions – the funding of courts within a constitutional framework, speech, Australian Institute of Judicial Administration, Australian Court Administrators' Group Conference, Melbourne, 15 May 2009, pp. 2–3, accessed 15 May 2013.
. High Court of Australia, Annual report 2010–2011, Commonwealth of Australia, p. 37, accessed 10 May 2013; Ibid., pp. 39–42; N Berkovic, ‘Razor gang’s High Court caveat’, The Australian, 5 January 2009, p. 2, accessed 10 May 2013; J Eyers, ‘Building in disrepair, warns Chief Justice’, Australian Financial Review, 19 December 2008, p. 18, accessed 10 May 2013.
. Portfolio budget statements 2012–13: Attorney-General’s Portfolio, op. cit., pp. 307, 309–11, 385–90; M Coombs, ‘Court reforms’, in Budget review 2012–13, Parliamentary Library, Canberra, May 2010, pp. 94–95, accessed 10 May 2013.
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