ACCESS TO JUSTICE POLICY CONSIDERATIONS
Submitters and witnesses to the inquiry discussed several issues
regarding access to justice and the development of policy settings for the
structure and quantum of federal court fees. These included:
- the overarching concept of the term 'access to justice';
- cost recovery as a principle in operating the federal courts;
- the use of court fees as so-called 'price signals';
- ensuring equitable access to the court system;
- the application of revenue from court fees; and
- concerns relating to how the quantum of court fees is set.
Philosophical approach to 'access to justice'
The Attorney-General's Department (Department) noted that a broad
understanding of the concept of access to justice has informed policy development
since the release of the Strategic Framework for Access to Justice in the
Civil Justice System (Strategic Framework) in 2009:
The Australian Government has adopted the view that 'access
to justice' is a concept broader than the ability of individuals to enforce
their legal rights in the courts, and extends to non-court dispute resolution
processes and 'everyday justice' in conflict prevention and resolution. The [Strategic
Framework]...promotes a holistic view of the federal civil justice system. This
view recognises that access to justice is about ensuring that people are able
to resolve their disputes through the least costly, quickest and most
Some submitters expressed concern that such an approach to access to
justice may be misguided. Associate Professor Michael Legg argued that, while
non-court processes can be useful, they 'cannot be equated with access to
Associate Professor Legg noted that only in official court proceedings are
matters definitively determined according to law, with mandated procedural
protections that are unavailable in other less formal resolution mechanisms.
The Law Society of South Australia argued that a broader understanding
of access to justice could weaken the fundamental rights of citizens:
As a matter of principle, citizens are entitled to have their
disputes justly determined according to law by an impartial and independent
judicial system. Obstacles to such determinations, such as court fees, act to
deprive citizens of that right...[This] right is a fundamental pillar of our
political and social structure, and it should not be undermined by other arms
of government which seek to encroach on the justice system.
The Rule of Law Institute of Australia (Rule of Law Institute) noted
that there is a public interest in the courts hearing disputes, beyond the
benefit to individual parties:
A determination by a court may not only provide finality for
the parties concerned, it can provide other, broader benefits such as
establishing precedents, evidencing open justice and elucidating the law.
Court fees and cost recovery
Examining the issue of cost recovery in the civil justice system, the Strategic Framework
noted that while the existence of courts and other justice services has public
benefits that clearly deserve public funding, it 'remains legitimate to explore
the extent to which specific activities...might be appropriate subjects of
assessing cost recovery'.
The Strategic Framework identified factors that are relevant considerations in
determining a government's policy approach toward cost recovery in the courts,
- the balance between the public and private benefits accorded by
different types of proceedings in the courts;
- recognition that cost recovery may be inappropriate where certain
parties are involved (such as matters involving children or human rights
matters), or where the courts hold an effective monopoly over the provision of
- fees must still ensure that price is not a barrier to access to
the courts; and
- full cost pricing could encourage litigants to pursue less
expensive dispute resolution mechanisms.
The Department has put to the committee that some level of cost recovery
is appropriate in the federal courts:
Given that courts are a limited, expensive public resource to
operate, it is appropriate for Government to seek recovery from users of some
of the costs of their operation. Almost every developed country levies some
charge for use of its courts. While there is clear public benefit in courts as
state sponsored machinery for dispute resolution and enforcing rights, specific
civil litigation functions of a court are performed at the request of parties
who have immediate and almost exclusive interest in the conduct and outcome of
litigation. This makes it important that court fees strike [an] appropriate
balance between access to justice and user pays principles. It is reasonable to
require those who use courts regularly for private benefit and have capacity to
pay for court services to contribute to the cost of those services.
A representative from the Department confirmed that cost recovery was
the primary principle guiding recent court fee changes:
[I]n relation to the setting of the court fees, the
overarching policy intent was to move the courts onto a greater cost recovery
basis. Once that decision had been made then it really was about devising a
package around that.
The Department advised that the proportion of court fees to court
funding, as a total for all Commonwealth courts, was 10 per cent in 2009-10,
increasing to 16.5 per cent in 2010-11 and projected to rise to around
30 per cent as a result of the 2013 fee changes.
Opposition to the principle of cost
Submitters expressed strong views about what level of cost recovery, if
any, is appropriate in the federal civil justice system. The Law Council of
Australia (Law Council) argued:
The provision of court services is not on a cost-recovery
basis. It is a fundamental element of maintenance of the rule of law in a civil
society that citizens have fair and reasonable access to dispute resolution
mechanisms. Given the courts are a 'public good', the state has a
responsibility to provide access to these services on the same basis as other
essential public infrastructure.
The Rule of Law Institute agreed that high court fees should not be
employed as a method of user-pays funding of the court system.
The NSW Council for Civil Liberties also considered that adopting a cost
recovery model for accessing the federal courts is unwise and will reduce
access to the courts.
Mr John Emmerig from the Law Council remarked that employing a 'user‑pays'
approach is not consistent with the status of the federal courts as an
independent arm of government:
There seems to be a user-pays philosophy which is not
consistent with that status as a branch of government. One can understand that
in tight financial times people are looking to save money, and cost-cutting is
on everyone's agenda, but it seems to me—and I respectfully suggest—that it
should be very important to this committee and to parliament generally that
great attention is paid in that sort of environment to ensuring that the
pressures to cost-cut and recover revenue and so on do not provide or are not
used as a vehicle to prevent access to the important instrument of the courts
to provide justice to people.
Resource intensive matters
A principle guiding the development of the 2013 fee changes was that
there should be higher fees for resource-intensive events in the courts.
In relation to targeting complex or resource intensive matters, the Rule of Law
Institute argued that the complexity of litigation alone should not demand
higher fees for court users:
[T]he complexity of the legal issues [should not] be the sole
determinant of the costs of accessing the court system. The fact that citizens
are subjected to increasingly complex legislation should not mean that the
costs of challenging or seeking clarity of that legislation be passed on to
In announcing the 2013 fee changes, the 2012-13 Budget papers stated:
[The new fees will] better reflect the capacity of different
types of litigants to pay...The reforms will send more appropriate price signals
to court users to encourage them to utilise alternative dispute processes where
The Department advised that appropriately structured court fees can act
as pricing signals to influence litigant behaviour and shape how litigation
proceeds through the courts. The Department's position is that tailored fee
levels should send pricing signals to 'encourage appropriate use of the
This reflects that the courts should not be the first port of
call for dispute resolution. Fee arrangements should seek to ensure that
meritorious litigants, while making an appropriate contribution, are not
unnecessarily deterred from seeking redress through the courts. Court fees can
also encourage early resolution of disputes where appropriate (such as
providing incentives to settle), assist litigants to focus on resolution throughout
the litigation process, prevent proceedings being drawn out by unnecessary
arguments, and ensure that disputants are conscious of the cost of the service
When asked whether there is any evidence to indicate that the courts
are, in fact, viewed as the 'first port of call' for dispute resolution, a
departmental representative indicated that an increase in court filing levels
could be one form of empirical evidence to support such a proposition, but did
not indicate that this had occurred.
Encouraging litigants to use
alternative dispute resolution (ADR)
Some submitters and witnesses contested the claim that increasing court
fees would encourage many litigants to resolve disputes through ADR mechanisms.
For example, the Law Council argued that it is reasonable to expect
that the vast majority of parties would exhaust all reasonable options to
resolve a dispute before approaching the courts, as litigation is 'the most
expensive and often least desirable option available',
and in many cases there is a legal requirement to pursue alternative options
before commencing litigation.
[T]here is no evidence available to suggest that increasing
court fees has had any impact on the tendency of parties to engage with ADR.
The Law Council is only aware of anecdotal reports of instances in which
parties have settled for an undesirable outcome to avoid being forced to pay
thousands of dollars in court fees, on top of legal fees and other costs.
Associate Professor Michael Legg contended that a shift in emphasis
toward non-court processes and ADR is simply about diverting parties away from
the courts, rather than achieving better outcomes:
This runs the risk of creating a bifurcated system of justice
with the 'haves' (mainly corporations and government) being able to afford
litigation if they cannot achieve a desired outcome through ADR, and the 'have
nots' who need to accept whatever is offered through ADR because they cannot
afford litigation. Promoting and encouraging the use of ADR can be beneficial
but if litigation is the last option, it must be a real option.
For the fundamental right of access to justice to be upheld
disputants should be able to make a genuine choice about whether ADR or the
courts better meet their needs.
The Law Society of South Australia highlighted that there are areas of
federal law, for example migration matters, that are not suitable for
resolution through ADR.
Mr Malcolm Stewart from the Rule of Law Institute commented that ADR
processes, while important, can be subject to abuse and should not become a
substitute for an independently adjudicated outcome.
Deterring unmeritorious litigants
Several submitters and witnesses contested the argument that court fees
acting as 'price signals' can deter unmeritorious litigants from bringing
matters before the courts. For example, Associate Professor Legg argued that
the Australian legal costs system, where the unsuccessful party pays the other
party's costs, already acts as a deterrent:
[I]t would be a much larger disincentive than anything you
are going to do with court fees, because the amount is much greater. In terms
of the unmeritorious type of litigation you might have people who...try to
judgement-proof themselves: 'I've got no assets; I don't care if I lose.' It is
still highly likely that that person could be bankrupt. I do not think that
trying to use court fees to dissuade them is really going to work.
The Rule of Law Institute agreed that unmeritorious litigants would not
be deterred by higher fees:
[T]here are complex factors motivating unmeritorious or
vexatious litigants. They may include mental health issues and certain
personality traits. These factors are generally unresponsive to 'price
signals'. In fact, raising filing fees may add to the sense of grievance felt
by such litigants or increase their sense of entitlement (having paid the fees)
to access the legal system. More likely, the brunt of dealing with the
increased fees is going to be met by administrative staff dealing with
applications for reduced fees or fee exemptions.
Deterring meritorious cases
Australian Lawyers for Human Rights contended that higher court fees
will also deter cases with genuine merit from being heard by the courts:
Increased court fees are a blunt instrument to deter
litigation. Such imposts deter cases without merit but they can also deter
cases with merit. This is not a preferable approach. The courts have an
inherent power to stop proceedings that are frivolous, vexatious, or otherwise
an abuse of process. The use of these rules allows the Courts to deter
litigation that has no merit, in a way that does not operate as a blunt
instrument deterring access to justice to other cases.
Mr David Gaszner from the Law Council agreed:
[T]he concept of a pricing signal is a sugar-coated way of
saying that if you put the financial barrier high enough people will not come
to court, and that is justified by the idea that it is preventing unmeritorious
cases from being advanced...[T]here are many quite meritorious cases which, when
they encounter this barrier, are not brought to court. They are easy to
identify but an unmeritorious case is not.
In response to the suggestion that increased fees might deter
meritorious cases, a departmental officer stated:
In terms of price signals...it is not really just about
deterring frivolous or vexatious litigants...[Rather], it is also about noting
that courts are expensive public resources and that really it should only be
the most difficult cases that get to the courts.
Equitable access to the court system
The Department has noted that structuring court fees should also be
informed by equity considerations:
Enabling equitable access to the court system is a key
consideration in structuring court fees. Under principles of equity, the
justice system should be fair and accessible for all, including those facing
financial and other disadvantage. For a well-functioning justice system, access
to the system should not be dependent on capacity to pay and vulnerable
litigants should not be disadvantaged.
Several submitters argued that the fee increases since 2010 have
breached this fundamental principle of equity in accessing the courts. For
example, the Law Council contended that the increased fee regime enhances
inequity in the legal system:
[T]he recent substantial increases to court fees and new fees
impact unequally on parties, by giving a significantly greater advantage to the
party with greater financial resources...[T]he substantially increased fees
significantly exacerbate the inequity for parties who are not wealthy and have
significant other financial responsibilities (including mortgages, legal fees,
the expense of running a business, etc), who may face greater pressure to agree
to an unfair or undesirable outcome when facing a dispute with a person or
entity prepared to 'wait out' their opponent, in the knowledge that they will
have to concede eventually for financial reasons.
The Law Society of South Australia argued that increased fees obstruct
equitable access to justice:
As a matter of principle, citizens are entitled to have their
disputes justly determined according to law by an impartial and independent
judicial system...[This] right is a fundamental pillar of our political and
social structure, and it should not be undermined by other arms of government which
seek to encroach on the justice system. Increased fees necessarily act as an
obstacle to access to justice.
Associate Professor Michael Legg contended that the recent fee increases
have made the courts inaccessible in Australia, stating that 'the vast majority
of individuals are going to have difficulty accessing the courts'.
Access to fee exemptions
As described in Chapter 1, the 2013 changes included reintroducing fee
exemptions for financially disadvantaged individuals. While submitters were supportive
of the decision to reinstate fee exemptions,
some questioned whether the exemptions available are sufficient to ensure
access to justice. For example, the Law Council argued:
[N]otwithstanding the importance of restoring fee waivers and
exemptions, both for impecunious parties and the financial position of the
courts, waivers and exemptions do not extend to the vast majority of working
families and working poor, who do not qualify for legal aid and yet in many
cases have no option other than to approach the courts to resolve their (often
complex) legal problems. Very often it will be no fault of the litigant that
they are forced to use the court system, and it is inimical to access to
justice for major financial barriers to be placed in the way of litigants who
have no other course.
Pro bono clients
The National Pro Bono Resource Centre noted that many law firms provide
pro bono services to clients who are unable to pay court filing fees, and
argued that automatic fee exemptions should be granted to individuals who are
being represented on a pro bono basis:
This would provide greater efficiency for the court and the
applicant in dealing with persons being acted for on a pro bono basis. It would
save time in completing and assessing the lengthy applications submitted for
fee waiver or deferral and bring pro bono matters into line with the current
treatment of those matters where there is a grant of Legal Aid.
Mr John Corker, Director of the National Pro Bono Resource Centre,
informed the committee that only 25 per cent of law firms undertaking
pro bono work are willing to meet external disbursement costs, including court
fees, for pro bono clients. Further, rigorous processes are undertaken in
selecting pro bono clients:
When matters are taken on pro bono, generally, for
litigation, firms and/or pro bono clearing houses make a careful assessment of
that matter as to its merits. They form a view that legal assistance will not
be available elsewhere and they will also look to the means of the person to afford
to pursue litigation before they make that decision...As a matter of fairness, as
a matter of principle, these matters should be treated in the court rules in
exactly the same way as those under the grant of legal aid or the other exempt
categories—but particularly legal aid, because of the similar assessment of
that person's capability.
Mr Corker also noted that most recipients of pro bono assistance qualify
for fee exemptions under the financial hardship test.
On the issue of whether firms might take on pro bono work for reasons
other than assisting clients who cannot afford legal representation, Mr Malcolm
Stewart from the Rule of Law Institute commented that this would be very rare.
Mr Corker stated that some 'public interest' cases may be taken on pro bono on
The National Pro Bono Resource Centre explained that pro bono clients'
applications for an exemption could be subject to clear certification processes:
The fact that the lawyer was acting on pro bono basis could
be certified by the relevant lawyer or by a pro bono clearing house (to be
named by regulation). There are currently ten such schemes in Australia. A
definition of 'pro bono legal work' exists in paragraph 2 of Appendix F of the
Commonwealth Legal Service Directions 2005 which could be used in this regard.
Mr John Emmerig from the Law Council expressed support for creating a
permanent exemption category for pro bono clients:
Anything that can simplify that process for the pro bono
provider and also for the court would be welcome...[O]ne of the impressive and
encouraging things...in legal practice in this country is the increase in
attention by the profession to pro bono work. It is a momentum that needs to be
supported. Anything that makes it simpler and more efficient would be very,
A representative from the Department informed the committee that it was
government policy for fee exemption requests by pro bono clients to be assessed
on a case by case basis:
The application of pro bono services for a particular
litigant does not follow necessarily the same process that you might get, for
example, in a grant of legal aid. It is not necessarily the case that a
litigant in those circumstances will have no capacity to pay. The government
believes it is appropriate that there be an assessment, not simply that because
pro bono services have been provided it should be automatic. It may well be,
for example, that there is a particularly significant point of law involved that
has attracted a private lawyer to act pro bono. That does not necessarily mean
that the litigant does not have some ability to pay...[T]he position of the
government is that there should be an assessment on a case by case basis.
Clients of Community Legal Centres
Witnesses at the committee's public hearing raised concerns regarding
access to fee exemptions for clients of community legal centres (CLCs). Ms Liz
Pinnock from the Hunter Community Legal Centre informed the committee that,
while the clear intention of the fee regulations is that clients of prescribed
CLCs should be exempt, anomalies in the fee exemption form used in the Federal
Court and the Federal Circuit Court mean that there is ambiguity about
whether CLC clients are covered under the category of those 'receiving legal
[I]t would appear from the reading of the regulations, and
the reading of the list of approved schemes, that there is an intention that
most if not all community legal centre clients should be exempt from the fees—and
yet the exemption form itself does not include that as a possibility.
Anecdotally, we have been told that many CLC clients have gone to court,
applied for an exemption and not received it, when in fact they should have
received an exemption.
In addition, Ms Lucy Larkins from the Federation of Community Legal
Centres Victoria raised concerns that not all CLCs that are eligible have been
prescribed as approved legal aid schemes under the Legal Aid Schemes and
Services Approval 2013. Ms Larkins recommended that this legislative
instrument be reviewed to ensure that all eligible CLCs are appropriately
A departmental representative commented that the list of approved
providers had been updated prior to the introduction of the current regulations
in January 2013, and that further updates are possible:
The approval was updated at the time the regulations were
made, and commenced on 1 January 2013, and, on the basis of knowledge of CLCs
that should be on the list at the time, a further process could be undertaken.
The sort of thing you might do would be to seek other CLCs who might think they
should be on the list. It is not an automatic thing that one would go on the
list. They would have to meet certain criteria. But, certainly, if a particular
CLC has that sort of interest they can raise it with the department.
Other flexibility measures in
relation to court fees
The Department noted that, in addition to fee exemptions, several other
measures give the courts flexibility in dealing with fees. These are:
retaining the power of the court to defer payment of fees in
cases of urgency or where it is warranted as a result of the person's financial
- discretion to file and/or hear a matter where a fee has not been
paid (despite the general rule that matters should not be filed or heard if the
fee is unpaid); and
- retaining the courts' powers of apportionment to direct who is
liable to pay court fees, including splitting fees between parties.
Application of revenue from court fees
As noted in Chapter 1, the government has made several announcements
about the application of revenue from the increased federal court fees since
- the 2010 fee increases were designed to raise $66.2 million in
revenue over four years, which was to be directed toward additional funding for
legal assistance services;
- the 2013 fee changes are forecast to raise $102.4 million in
revenue over four years, with additional funding of $38 million to be
reinjected into the court system.
The Department commented in relation to the application of revenue
raised from federal court fees:
The federal courts are funded out of the Budget not through
court fees. Court fee revenue is returned to consolidated revenue. It costs far
more to run the federal courts than is raised through court fees. The primary
consideration for the 2013 court fee increases was to increase cost recovery
levels of running the courts. Out of this increased fee revenue from the
2012-13 Budget, the Government decided to allocate additional Budget funding to
the courts at a level that it considered an appropriate amount to put the
courts on a firmer financial footing. The remainder of the fee revenue is
appropriately available to fund other Budget priorities.
Several submitters and witnesses raised objections to court fee revenue
being returned to consolidated government revenue.
The Law Council expressed the view that 'court fees do not, and should not,
exist to raise revenue for the government or to fund essential services'.
The Law Council strongly opposes the emerging practice of
effectively taxing federal court and tribunal users to fund other essential
government services. It is important to recognise that the courts are not and
should not be treated as government agencies, which are required to continue to
serve essential and inalienable functions on ever-shrinking budgets...In order to
ensure the strength of our system of government, the federal courts must be
adequately resourced and not be reliant on hand-outs raised by court fees. Nor
should the courts be regarded as revenue-raising tools of government, or
self-funded entities. To treat the courts in such a fashion would seriously
undermine access to justice and, ultimately, the capacity of the courts to
uphold the rule of law.
The Rule of Law Institute agreed that the lack of funding for the
operation of federal courts and legal assistance services should not be made up
through increased fees at the risk of compromising access to justice:
[T]he rise in federal court filing fees has confused two
issues: access to justice and budgeting. The rise in fees is not just a
financial issue, it is a threat to a fundamental principle of the rule of law.
Provision of justice through a functioning, adequately resourced justice system
is a core responsibility of government. Budget crises require budgetary
responses, not inroads into the rule of law and access to justice.
The National Pro Bono Resource Centre suggested that, in order to ensure
appropriate use of fee revenue, a percentage could be 'tied and directed
towards legal assistance funding'.
Mr Stewart of the Rule of Law Institute supported the idea of allocating
revenue from court fees to legal assistance services.
Associate Professor Legg, while supportive, expressed caution that
putting fee revenue back into legal assistance schemes would not help the
majority of citizens, who will not qualify for legal assistance yet may still
struggle to pay higher fees in order to enforce their rights.
Broader context of the overall costs of litigation
In addition to access to justice considerations specifically relating to
court fees, the Department highlighted the fact that court fees are only one
component of the overall cost of resolving disputes in the courts:
The largest costs in litigation are not court fees, but legal
fees. Court and tribunal fees are only a small proportion of the actual costs
of using the court or tribunal where legal representation is involved. Legal
costs to an individual will vary according to the service used and complexity
of issues. However, in an example of a family law financial proceeding in the
Federal Circuit Court...a litigant may incur the following costs in the course of
- court fees – $2,130, and
- legal costs – at least $16,753.
Given these proportions, for many people, increases to court
fees will not necessarily impede access to justice relative to the total cost
Associate Professor Legg commented that the high cost of legal
representation does not justify increasing costs in other areas:
[J]ust because you have other costs out there it does not
make it right for government to...put more of a burden on people and increase the
costs even further, just because [fees] are a small part of it. The fact is
that all of the costs impede access to justice...[E]veryone should take
responsibility for trying to keep the costs down.
Policy development process for setting court fees
Mr Emmerig from the Law Council argued that there is a lack of logic
underpinning the policy settings for federal court fees since 2010:
There is no real logic that we have been able to discern
behind the quantum of the fee increases. It is not linked to CPI or some other
ordinary benchmark like that. It puts the federal court fees completely out of
alignment with the fees being charged by other courts. It makes the federal court
fees the highest in the country and therefore the most difficult for people to
Mr Emmerig also expressed the Law Council's view that there has been
inadequate consultation undertaken by the government with the legal profession
during the development of changes to federal court fees.
Other submitters and witnesses agreed that broader consultation is necessary in
order to avoid anomalies and unintended consequences in the fee regime.
Mr Emmerig proposed a broader consultation model to be adopted in
developing future changes to court fees:
It seems to [the Law Council] that it is very important that
people who have a relevant perspective to this issue are involved in some form
of effective and transparent consultation process when the fees are adjusted.
Without wishing to be exhaustive, one could imagine that those people would
include: the Law Council, because of the large number of lawyers that are
involved in these matters; the Federal Court; associations linked with pro bono
work; legal aid; and Family Court specialists who work in that particular
discipline. And there may be a need for some other experts who deal with other
areas such as immigration, insolvency and so on; maybe they could be caught by
other bodies. But...there does need to be a wide pool of people who need to be
involved in the process and it has got to be a lot more transparent than it is
In response to questioning about consultations undertaken in relation to
fee changes, a departmental representative told the committee that consultation
was undertaken in 2011 during the review of the 2010 fee increases, including
with stakeholders such as the Law Council, National Legal Aid and the National
Association of Community Legal Centres.
In relation to the setting of the quantum of court fees, the
representative confirmed that this is a confidential budget process of
The court fees process is typically undertaken as part of the
budget process, which is confidential to government, so the ability of
government to consult is quite significantly constrained during the course of a
budget process. We were able to have some discussions with the courts about the
design—I am not talking about quantum but at least in terms of the design—of
the new court fee measures, and subsequent to the budget process being endorsed
we were able to consult quite closely with the courts on the fee regulations.
...[I]t is open to stakeholders to engage with the department
to discuss appropriate settings for court fees, while recognising that that can
only be at the principle level. Furthermore, at the time that the budget
processes are entered into, when government have a particular idea of the
quantum they are looking for, the ability at that stage is constrained but
relies on principles that have been established as a result of consultations.
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