ADDITIONAL COMMENTS BY
Coalition senators recognise the importance of regular review and, where
necessary, increases of court fees in order to maintain the day to day
operation of our justice system.
Coalition senators heard evidence through submissions and live testimony
that raised serious concerns in the case of these most recent fee increases.
Three of the primary concerns are summarised as follows.
Coalition senators are concerned that court fee increases since 2010
have been, for the most part, a mechanism primarily instituted to generate
revenue and are not commensurate with a workload increase or change in the
nature of business of the courts.
The inquiry heard evidence from John Corker, Director of the National Pro Bono
Resource Centre, who stated 'from looking at the annual reports of the courts,
that the revenue raised through court fees does go back into general revenue...'
i.e., rather than the courts directly.
Under questioning during the Legal and Constitutional Affairs
Legislation Committee's Budget Estimates hearings, Mr Peter Bowen, Chief
Finance Officer of the Federal Court of Australia, revealed that only a small
proportion of the extra revenue raised by the fee increases actually reaches
Senator BRANDIS: So basically the government has given
you about $1.4 million?
Mr Soden: That is correct.
Mr Bowen: Yes.
Senator BRANDIS: Have you got an actual figure?
Mr Bowen: It is $1.466 million.
Senator BRANDIS: And the increase in the court fees
has generated additional revenue of $9.24 million. So 80 per cent, roughly, has
been returned to consolidated revenue and $1.466 million, or about 20 per cent,
has been reinvested in the court. Is that right?
Mr Bowen: That is correct.
This evidence highlights that the Government's primary objective in
implementing these fee increases is to attempt to balance its own budget, and
not of a means to improving the efficiency or operation of the courts.
Access to justice
Coalition senators believe that any increase in court fees must take the
Government's Strategic Framework for Access to Justice and the fundamental
principles of access to justice into consideration with significant weighting
so as not to preclude any person from the right to access the court system.
This point was a point made by several witnesses, including the Law
Council of Australia:
It flows from this that access to the courts should never be
contingent upon the capacity of individual litigants to pay. It has been long
accepted that the courts are not a "user-pays" system and that fees,
where they are imposed, serve the function of covering reasonable
administrative costs associated with handling court documents and processes;
and deterring frivolous, vexatious or unnecessary litigation.
Ill-conceived rises in court fees have a flow on impact that limits
justice at many levels of the community. Associate Professor Michael Legg,
appearing in a private capacity, noted:
terms of the impact on access to justice cost generally is problematic. It does
not just impact the poor or the disadvantaged, although it clearly does impact
them. It impacts the majority of Australians because accessing the legal system
Coalition senators are concerned that increasing court fees does not
necessarily aid in conflict resolution. This point was made by Mr Denis Farrer
of the Law Council of Australia, who said:
There is no research, to my knowledge, that would suggest
that charging people more is going to mean that they are going to settle their
dispute. The reality is that people, if they reach the breaking point in terms
of their finances—if the straw that breaks the camel's back is the filing
fee—will be unhappy and disgruntled. If you divert them out of the legal system
by making it unaffordable that does not mean that their problem is solved.
It is reasonable to expect, that by limiting access to justice,
litigants that should be afforded the right of access to the court system, will
allow the matter to remain unresolved.
Lack of consultation
Coalition senators are concerned with the lack of consultation that was
undertaken when arriving at the decision to increase court fees by such a
substantial amount. As the committee Chair, Senator Wright, correctly pointed
out during the hearing:
...everyone believes there should be court fees and we are not
objecting to that. Someone, somewhere has to be responsible for overseeing
them. But what I see is that the very basic cornerstone upon which this whole
structure is built has not been done in consultation with stakeholders.
The inquiry heard further criticism of the lack of consultation from
Mr John Emmerig of the Law Council of Australia:
There has been a lack of consultation, which means that for
the bodies we represent—and that is all the law societies and the bar
associations, and through them essentially 60,000 front-line practicing
practitioners—that input has been lost in the process of setting these fees,
and I think that is an important problem.
The Coalition considers the lack of consultation with stakeholders in
the legal fraternity to be a gross oversight on the part of the government.
These issues highlight the government's mishandling of the recent court fee
increases and show them to be driven largely by a desire to raise revenue than
to improve access to justice.
Senator Gary Humphries Senator
Senator Michaelia Cash
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