Michele Brennan and Tyler Fox
Robert French, Chief Justice of the High Court of Australia
(HCA), has said that court funding decisions are ‘value judgments’ that cannot
merely be based on ‘economic justifications’ but the courts’ ‘functions in the
maintenance of constitutional arrangements, the rule of law and the provision
of access to justice for individuals, organisations and governments’.[1]
However, the Chief Justice recognised that the Parliament is justified in
taking measures to ensure that ‘public resources allocated to the courts are
used efficiently and that their use is capable of intelligible explanation’.[2]
This article provides an overview of actual and proposed
funding for federal courts and tribunals from 2009–10 to 2017–18. As is
apparent from Graph 1, after a slump from 2010–11 to 2014–15 (during
which funding fell by almost 32 per cent), funding for the major federal courts
and tribunals is forecast to increase by 27 per cent in 2014–15 and by 2017–18
will be approximately 91 per cent of 2009–10 funding.
Graph 1: Total federal court and tribunal funding[3]
However,
the forward year figures include the increased funding for the expanded jurisdiction
of the Administrative Appeals Tribunal (AAT). The boost to the AAT accounts for
97 per cent of the increase in funding in 2014–15. The AAT’s funding increases
by $83.7 million in 2015–16, more than tripling its funding from $37.9 million to
$121.6 million.[4]
This increase reflects the passage of the Tribunals
Amalgamation Bill 2014, which will merge the Migration Review Tribunal
(MRT), Refugee Review Tribunal (RRT) and
Social Security Appeals Tribunal (SSAT) into the AAT from
1 July 2015.[5]
In recent years, annual appropriation to the MRT, RRT and SSAT has been around
$113 million.[6] This funding has been
moved to the AAT, but not in its entirety. Leaving aside this consolidation
within the AAT of pre-existing funding, federal court and tribunal funding will
remain flat into the forward estimates, as indicated by Graph 2.
Graph 2: Funding by court/ tribunal[7]
Reorganisations
As is evident from Graph 2, the amalgamation of
tribunals is not the first reorganisation that the federal system has undergone
in the period since 2009–10 and this year’s Budget indicates that it will not
be the last. The Courts and Tribunals Legislation Amendment (Administration)
Act 2013 removed the National Native Title Tribunal’s status as a statutory
agency, merging it into the Federal Court of Australia (FCoA).[8]
That Act also facilitated the merger of the administrative functions of the
Family Court of Australia and the Federal Circuit Court (FCC).[9]
This year’s budget foreshadows further amalgamation, proposing that the
corporate functions of the Family Court and the FCC are to merge with the FCoA
to form a single administrative body with a single appropriation from 1 July
2016.[10]
However, the court funding forward estimates figures do not reflect the
proposed consolidation ‘as the timing of this proposed reform is subject to
legislative change’.[11]
Fee increase
An extra $87.4 million will be raised over the next four
years from changes to the fee structure of the FCoA, Family Court and FCC.[12]
The fee increases will raise $69.6 million from litigants in the Family Court
and FCC, and $17.8 million from those in the FCoA. Details of the fee increases
are not provided in the Budget papers, but media reports indicate that they
will be provided on 1 July 2015.[13] Media reports also
suggest that the increases to Family Court fees will be substantial, with the
cost of filing an application for divorce foreshadowed to rise by around 42 per
cent, from $845 to around $1,200 and applications for consent orders
foreshadowed to rise by around 55 per cent, from $155 to around $240.[14]
The plan to increase fees has drawn criticism from the Family Law Section of
the Law Council of Australia:
... we would be extremely concerned that any fee increase would
severely restrict access to the courts by the people most in need. Court fees
even at their existing levels are a significant burden for families who are
struggling through a crisis.[15]
While family court fees are set to rise, media reports
indicate that the Government is considering reversing fee increases introduced by
the previous Government in 2012 for FCoA tax cases.[16]
Refurbishment of court buildings
$30 million is provided to the Department of Finance for
refurbishment of court buildings, including improvements to holding cells
consistent with the recommendations of the Royal Commission into Aboriginal
Deaths in Custody, which issued its final report in 1991.[17]
(Given that federal courts primarily deal with civil cases, with most
Commonwealth criminal prosecutions being conducted in state and territory
courts, holding cells are likely to be used relatively infrequently in federal
courts. This may explain the delay in implementing the recommendation in the
federal buildings.)
The Law Council remarked:
It’s worth inquiring why the Royal Commission recommendation
is only now being implemented 20 years after it was made. In any event, when
infrastructure spending is being funded by a potential increase in fees, you
immediately have an access to justice issue. We don't make Australians pay a
fee to access public hospitals or schools – why should we have to pay for the courts?[18]
[1].
RS French, Boundary
conditions – the funding of courts within a constitutional framework, Journal
of Judicial Administration, 19(2), October 2009, pp. 75–76.
[2].
Ibid.
[3]. The
figures in Graphs 1 and 2 are derived from the following documents and are
adjusted to March 2015 figures: Australian Government, Portfolio
budget statements: Attorney-General's Portfolio, 2009–10 to 2015–16; Administrative
Appeals Tribunal , ‘Annual reports’,
2009–10 to 2013–14; Family Court of Australia, ‘Annual
reports’, 2009–10 to 2013–14; Federal Circuit Court of Australia, ‘Annual
reports’, 2011–12 to 2013–14; Federal Court of Australia, ‘Annual reports‘,
2009–10 to 2013–14; High Court of Australia, ‘Annual
reports’, 2009–10 to 2013–14.
[4].
Australian Government, Portfolio
budget statements 2015–16: budget related paper no. 1.2: Attorney-General’s
Portfolio, p. 71.
[5].
Parliament of Australia, ‘Tribunals
Amalgamation Bill 2014 homepage’, Australian Parliament website. The
Bill was passed by the Parliament on 13 May 2015.
[6]. In
2014–15, the MRT-RRT received new appropriations of $84 million, consisting of $60.6
million in the Portfolio
budget statements 2014–15: budget related paper no.1.11: Immigration and Border
Protection Portfolio, p. 70 and $23.4 million in the Portfolio
additional estimates statements 2014–15: Immigration and Border Protection
Portfolio, p. 68. As the SSAT is not a statutory agency, its
funding was included in the funding for the Department of Social Services and
was not separately identified in the budget papers: Portfolio
budget statements 2014–15: budget related paper no. 1.15A: Social Services
Portfolio, p. 6. The SSAT received appropriations of $29.1 million in
2013–14: Social Security Appeals Tribunal (SSAT), Annual
report 2013–14, SSAT, Canberra, 2014, p. 34.
[7]. See
footnote 3, above.
[8]. Courts and Tribunals
Legislation Amendment (Administration) Act 2013.
[9]. The
Federal Magistrates Court was renamed the Federal Circuit Court on 12 April
2013, on commencement of the Federal Circuit Court of
Australia (Consequential Amendments) Act 2013.
[10].
Australian Government, Portfolio
budget statements 2015–16: budget related paper no. 1.2: Attorney-General’s
Portfolio, pp. 300, 321.
[11]. Ibid.
[12]. Australian
Government, Budget
measures: budget paper no. 2: 2015–16, p. 66.
[13]. S
Whyte, ‘Families
in strife will face a "divorce tax"’, The Sydney Morning
Herald, 15 May 2015, p. 9.
[14].
N Berkovic, ‘Fee
hike adds to cost of divorce’, The Australian, 15 May 2015, p. 5; S
Whyte, op. cit. For current fees see Family Law Courts (FLC), ‘Court
fees’, FLC website.
[15]. N
Berkovic, op. cit.
[16]. Federal Court and Federal
Magistrates Court Regulation 2012. For current fees see Federal Court of
Australia (FCoA), ‘Fees payable’,
FCoA website.
[17]. Australian
Government, Budget
measures: budget paper no. 2: 2015–16, p. 66. Royal Commission into
Aboriginal Deaths in Custody, National
report, AGPS, Canberra, 1991.
[18].
Law Council of Australia, Small
business changes a boon for law practices, but legal aid freeze will hurt
access to justice, media release, MR 1521, 13 May 2015.
All online articles accessed May 2015.
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