INTRODUCTION AND BACKGROUND
Referral of the inquiry
On 27 February 2013, the Senate referred the matter of the impact of
federal court fee increases since 2010 on access to justice in Australia to the
Legal and Constitutional Affairs References Committee (committee) for inquiry
and report by 6 June 2013, with particular reference to:
(a) the impact of federal court fee increases on low-income and ordinary
Australians and operators of small businesses;
(b) whether these fee increases are reasonable, based on evidence and
consistent with other justice policy matters;
(c) how increases in court fees, and other reform to the courts and justice
system, can act as a barrier to accessing justice;
(d) the extent to which court fee increases may impact on services provided
by legal assistance services (i.e. legal aid commissions, Aboriginal and Torres
Strait Islander legal services, family violence prevention legal services and
community legal services);
(e) the degree to which the fee changes reflect the capacity of different
types of litigants to pay;
(f) the application of the revenue that has been raised by federal court fee
(g) other relevant matters.
On 6 June 2013, the committee tabled an interim report for the inquiry,
stating that due to the need to thoroughly consider the evidence presented and
conclude its deliberations, the committee intended to table its final report by
12 June 2013.
On 12 June 2013, the committee tabled a second interim report, extending
the reporting date for the inquiry to 17 June 2013 in order to enable
additional time for the committee to finalise its report.
The Commonwealth administers four federal courts: the High Court of
Australia (High Court), the Federal Court of Australia (Federal Court), the
Family Court of Australia (Family Court) and the Federal Circuit Court of
(Federal Circuit Court).
Each of these courts charges administrative fees for a variety of
different applications made to the court and procedures undertaken by the
court. These include, among other things, fees for:
making an application to commence a proceeding in a court;
- setting down hearing dates for a matter to be heard;
- hearing fees (charged for each day a matter is heard in a court);
- applications to subpoena evidence; and
- applications to restrain property or evidence in relation to a
Access to Justice Taskforce
In January 2009, the then Attorney-General, the Hon Robert McClelland
MP, established an Access to Justice Taskforce to 'undertake a comprehensive
examination of the federal civil justice system with a view to developing a
more strategic approach to access to justice'.
The final report of the Taskforce, A Strategic Framework for Access to
Justice in the Federal Civil Justice System (Strategic Framework), was
released in September 2009, and was adopted by the government to assist in the
development of access to justice initiatives and broader civil justice reforms.
The Strategic Framework recommended in respect of court fees that the
Attorney‑General 'should initiate a thorough examination by the Standing
Committee of Attorneys‑General of issues and options for funding aspects
of the justice system on a cost recovery basis...to ensure that resourcing of the
justice system maximises access to justice'.
The Strategic Framework also recommended that full cost pricing for long
court hearings should be introduced:
Given the significant public costs of court hearings, and the
opportunities parties have to resolve matters without hearing, or minimise the
length of hearings by identifying the real issues in dispute, full cost pricing
for long hearings is generally appropriate. The Government should propose a
model of full cost pricing for long hearings which would:
- commence after a certain number of hearing days, or adopt a sliding
scale, rather than be imposed as an exercise of judicial discretion, and
- be subject to a comprehensive system of exemptions and waivers
(excluding, for example, human rights and native title matters) to protect
access to justice.
Following the publication of the Strategic Framework, the Standing
Committee of Attorneys-General reported that Ministers had agreed to 'develop a
harmonised approach to options for greater cost recovery of justice services,
including consideration of cost recovery options for courts and tribunals'.
Recent fee increases in the federal courts
Successive rounds of fee increases have occurred in the federal courts
in the last few years, with changes being implemented in July 2010, November
2010 and January 2013.
A consolidated list of these changes was provided to the committee by the
Attorney-General's Department, and is published on the committee's website.
Fee increases in 2010
Two stages of fee increases were instigated in 2010 as part of a suite
of access to justice measures in the 2010-11 Federal Budget.
A range of increases were introduced on 1 July 2010, amounting to an
approximately eight per cent increase across the federal courts. This included
- staged hearing fees in the Federal Court so that higher fees are
payable in longer cases;
- changes from one-off hearing fees in the Family Court and the
then Federal Magistrates Court to a daily hearing fee structure; and
- a new one-off fee of $80 for filing a consent order in the Family
In November 2010, new flat fees were introduced for litigants who
previously had been eligible for fee exemptions. These fees were $60 in family
law matters and $100 in other matters.
Prior to November 2010, the categories of individuals automatically granted an
- recipients of legal aid under an approved scheme;
- persons holding certain concession cards, including health care
and pensioner cards;
persons who are imprisoned or otherwise detained in a public
- persons under 18 years of age;
- persons receiving youth allowance, Austudy payments or benefits
under the ABSTUDY scheme; and
- persons involved in certain Native Title proceedings.
In addition to the automatic fee exemption for certain categories of
individuals, the courts could also grant an exemption if paying the fee would
cause financial hardship to the individual. The fees regulations provide that
in considering whether a fee would cause financial hardship, the court must
consider the individual's income, day-to-day living expenses, liabilities and
The 2010 fee increases were designed to raise $66.2 million in revenue
over four years, to be directed toward additional funding for legal assistance
Review of 2010 increases undertaken
by the Attorney-General's Department
In 2011 the Attorney-General's Department (Department) conducted an
internal review of the 2010 fee changes, to ascertain the impact of the changes
on court users in the first year of their operation. The current Attorney‑General,
the Hon Mark Dreyfus QC MP, has stated that few strong conclusions could be
drawn as a result of the review:
Data provided by the federal courts and the Administrative
Appeals Tribunal showed no clear changes to filing levels coinciding with the
fee changes, including no reductions in the filing of consent orders or
significant changes to full fee filings for corporations. Overall, the data did
not allow any conclusive observations to be made other than that there were no
significant changes to numbers of filings in the period July 2010 to
Fee increases from 1 January 2013
The government announced further reform to the structure of federal
court fees in the 2012-13 budget, which came into effect from 1 January 2013
through new fee regulations.
In its submission to the committee's current inquiry, the Department explained
that the main changes were:
- reinstatement of fee exemptions (in place of the flat fees
introduced in 2010);
- general increases to court fees of 40 per cent for corporations
fees, 15 per cent for other fees in general federal law matters, and
20 per cent for family law fees;
- new fees for publicly listed corporations (150 per cent of the
corporations rate) and requiring public entities to pay the corporations fee
making incorporated small businesses and unincorporated
not-for-profit associations eligible for the fees payable by individuals
instead of corporations; and
- introduction of new fees which target resource intensive matters,
including fees for examinations in bankruptcy and winding up.
The Department noted that the 2013 fee changes are forecast to raise
$102.4 million in revenue over four years, with accompanying funding of
$38 million to be reinjected into the courts 'to maintain delivery of key
services, including regional circuit work'.
Reinstatement of fee exemptions in
place of flat fees introduced in 2010
The 2013 changes included the reintroduction of the fee exemption
categories, in place of the flat fees that had replaced them in November 2010.
The Department explained the rationale for this policy reversal:
Submissions to the 2010 fees review noted an administrative
burden for legal assistance providers in relation to collecting fees from
clients, including disproportionate administrative costs in pursuing several
debts of $100 or less, and assisting with applications for fee reduction or fee
deferral where applicable. Consistent with an administratively efficient fee
structure, fee exemptions have been reinstated in 2013 to address these
Conduct of the inquiry
The committee advertised its inquiry in The Australian on 27
March 2013. The committee also wrote to 153 organisations and individuals,
inviting submissions by 12 April 2013. Details of the inquiry were also placed
on the committee's website at www.aph.gov.au/senate_legalcon.
The committee received 32 public submissions, and all public submissions
were made available on the committee's website. A list of those submissions is
at Appendix 1. The committee held a public hearing for the inquiry in Canberra
on 17 May 2013. A list of witnesses who gave evidence at the hearing is
at Appendix 2, and copies of the Hansard transcript are available
through the committee's website.
The committee thanks those organisations and individuals who made
submissions and gave evidence at the public hearing.
Structure of the report
The report is divided into four chapters:
- Chapter 2 outlines access to justice policy considerations as
they relate to the structuring and pricing of federal court fees;
- Chapter 3 discusses the broad impact of federal court fee
increases since 2010, as well as the impact on specific court users; and
- Chapter 4 sets out the committee's views and recommendations.
Note on references
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
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