Court reforms

Budget Review 2012–13 Index

Moira Coombs 

National Native Title Tribunal reform

The Government will achieve savings of $19.0 million over four years by introducing efficiencies in the native title system. Certain functions of the National Native Title Tribunal (NNTT) will be transferred to the Federal Court of Australia. The Court will take over the administration of the NNTT from 1 July 2012 and will be responsible for the ‘mediation of native title claims and the provision of claims-related Indigenous Land Use Agreement negotiation assistance.’[1]

The NNTT will no longer be a prescribed agency under the Financial Management and Accountability Act 1997 but will become a sub-program within the Federal Court’s appropriation.[2] It will still maintain its status as a statutory agency but will take its place with the other tribunals within the Federal Court’s structure such as the Australian Competition Tribunal, the Copyright Tribunal and the Defence Force Discipline Appeal Tribunal.[3]

The Attorney-General’s Portfolio Budget Statement states:

The NNTT will continue to exist as a separate entity and will continue to play a crucial role in the effective functioning of the native title system. It will remain responsible for assisting with the negotiation of non-claim related ILUAs and for performing its other statutory functions.[4]

Agency staffing estimates indicate that, once the NNTT has transferred to the Federal Court structure, 50 less staff will be employed across the two bodies.[5] The savings resulting from these efficiencies will be directed towards the Stronger Futures measures in the Northern Territory.[6]

The NNTT was established under the Native Title Act 1993 (Cth). The original role of the NNTT was to try to achieve consensus in resolving applications to the NNTT which sought the determination of the existence or otherwise of native title,  or applications for compensation. The courts remained the decision-makers in contested cases in determining the existence of native title or the entitlement to compensation.[7] Over time, changes to the Native Title Act 1993  have affected the division of responsibilities between the NNTT and the Federal Court. These have arisen both in response to High Court decisions and policy changes. The measures announced in the Budget represent a further development of the relationship between, and responsibilities of, the two agencies.[8]  

 In the Native Title Amendment Act 1998  the Federal Court was given responsibility for making determinations on native title and compensation, while the NNTT had power to make determinations about whether certain future acts could be done and whether certain agreements concerning native title were covered by the Act as well as undertaking mediation in native title matters.[9]

In 2009, the Native Title Amendment Act 2009 gave:

the Federal Court control over the management of native title claims from start to finish, allowing opportunities for negotiated settlements to be more effectively identified and progressed.[10]

The amendments allowed the Court to:

  • refer a matter to a mediator, other than the National Native Title Tribunal or a Court registrar;
  • make orders to give effect to the terms of an agreement between the parties that are about matters other than native title, whether or not a determination of native title is made; and
  • make these orders where only some of the parties are in agreement about the orders which are sought.[11]

Court fees increase

The Government will increase court fees to achieve revenue of $76.9 million over four years. Budget Paper No. 2 states that:

the reforms will send more appropriate price signals to court users to encourage them to utilise alternative dispute processes where appropriate, and will focus particularly on fees for corporations and resource intensive matters.[12]

The Government currently recovers only 15 per cent of court costs through fees. The level of fee increases and who they will apply to has not been determined as yet. The Government will work with the courts on the appropriate fee structure and the outcome will be announced this year with the new fees applying from 1 January 2013.

A recent media report comments that ‘the Federal Court has already complained to government about its existing financial circumstances’ and further:

Consultants O’Connor Marsden & Associates were appointed last year by the court to review its financial position, which O’Connor found was unsustainable. The court posted a $1.7 million loss in the 2010-11 financial year, and has reported a deficit in three of the last four financial years. O’Connor found the court had already cut costs to the bone and “ultimately such an approach is unsustainable, and a re-base of its funding should be considered as an immediate priority”.[13]

However, other comment has indicated concern about the impact of court fee increases on access to justice. The President of the Law Council of Australia, Catherine Gale commented that the Council was:

very concerned at the prospect of further increases in court fees which could establish a ‘user pays’ system that reduces access to justice. The government should recognise that as one of the biggest litigators in federal courts, it also placed a major cost burden on the justice system.[14]

Senator George Brandis, Shadow Attorney-General, stated that:

he had a philosophical objection to the government’s approach because the rule of law depended on the courts being available to all. “I entirely agree with Chief Justice Bathurst.  Middle Australia, as a result of pending increases in court fees and a failure to address gaps in legal aid funding, is being rendered unable to protect their interests”.[15]

The Government states that changes to court fees and the reforms concerning the NNTT ‘will add to the Government’s current court reform agenda which is designed to provide more certainty around the role of each of the Federal Courts and the establishment of a new Federal Court, the Military Court of Australia.’[16]

[1].       Australian Government, Portfolio Budget Statements 2012-13: budget related paper no. 1.2, Attorney-General’s Portfolio, Commonwealth of Australia, Canberra, 2012, p. 386, viewed 10 May 2012.

[2].       Ibid., p. 386.

[3].       Federal Court of Australia, Annual report, 2010–11, pp. 147–150, viewed 16 May 2012; see also A Boxsell, ‘Federal Court may get power, not funds’, Australian Financial Review,  4 May 2012, viewed 10 May 2012.

[4].       Australian Government, Portfolio Budget Statements 2012-13, op. cit. p. 386.

[5].       Australian Government, Budget Measures: budget paper no. 1:  Statement 6, Appendix C, Additional Agency Statistics, Table C5: Estimates of average staffing level of agencies in the Australian Government general government sector, 2012, viewed 10 May 2012.

[6].       Ibid., p. 386; It is understood that the move on 1 July 2012 may also lead to redundancies at the tribunal as stated in A Boxsell, ‘Court fees budget rise disappoints’, Australian Financial Review, 11 May 2012, p. 50.

[7].       National Native Title Tribunal, Annual Report 1993–94, p. 1.

[8].      The revised responsibilities of the NNTT are set out in NNTT, Native Title institutional reforms will ensure NNTT's continuing role in the native title system, media release, 17 May 2012, viewed 17 May 2012.

[9].       Section 4, Native Title Amendment Act 1998.

[10].      R McClelland (Attorney-General), Native Title reforms pass Parliament, media release, 14 September 2009, viewed 10 May 2012.

[11].      Federal Court of Australia, Annual report 2009-2010, p. 14.

[12].      Australian Government, Budget measures: budget paper no. 2: 2012-13, Commonwealth of Australia, Canberra, 2012, viewed 10 May 2012.

[13].      A Boxsell,  ‘Federal Court may get power, not funds’, Australian Financial Review, 4 May 2012, p. 44, viewed 17 May 2012.

[14].      A Boxsell,  ‘Court fees budget rise disappoints’, op. cit.

[15].      C Merritt, ‘For middle Australia, access to justice is fast becoming a pipedream’, The Australian, 11 May 2012, p. 33.viewed 17 May 2012.

[16].      N Roxon (Attorney-General), Improving our courts and tribunals, media release, 8 May 2012, viewed 10 May 2012.

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