Federal courts and tribunal funding

Budget Review 2015–16 Index

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]

Federal courts and tribunal funding

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]

Funding by court/ tribunal

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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