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LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE - 16/02/2004 - Attorney-General's Portfolio - High Court of Australia

Senator LUDWIG —The annual report refers to an increasing number of cases filed in the court's original jurisdiction, particularly immigration cases. I think it is an issue we have perennially raised with you. If possible, could you provide a breakdown of how many of these were remitted to other courts—in other words, I would like to know the total number of original jurisdiction immigration cases, as far as you can identify them as being that, together with how many have been remitted to other courts. Can you take that on notice, unless you can provide it.

Mr Doogan —I refer you to page 8 of the annual report. Under the heading `Workload Changes', the second paragraph states:

Of the 2,131 applications for constitutional writs filed, 1,947 were remitted to either the Federal Court of Australia or the Federal Magistrates Court during the past year.

Senator LUDWIG —How many of those were immigration cases?

Mr Doogan —The first paragraph under the heading `Workload Changes' states:

Of those applications, 2,105 (or 99 per cent) involved migration matters.

Senator LUDWIG —Has there been an increase in that number over the last couple of years?

Mr Doogan —Certainly over the last couple of years, yes. In comparison with the previous year, the number of constitutional writs filed increased from 300 to 2,131.

Senator LUDWIG —What has caused that increase? It seems quite a large jump.

Mr Doogan —The Muin and Lie cases, which we discussed previously, were the major source for these cases. The trend, though, has of course declined. Perhaps in the interests of time it might be convenient if I were to give you two tables. The first one actually deals with all current immigration matters within the court as of 11 February. It shows a breakdown by each registry around the country and the type of matter involved. From that table you will see that presently within the High Court there is a total of 348 migrations matters.

Senator LUDWIG —Could many of those have been lumped together in one discrete bundle—if class actions are no longer available in this area?

Mr Doogan —No. The biggest individual number is made up of special leave applications, of which there are 205.

Senator LUDWIG —And do they relate to single matters or to separate issues?

Mr Doogan —To 205 single matters.

Senator LUDWIG —Just to distil that a little further, how many actions would be attributable to section 486 prohibiting class actions? In other words, if you did not have section 486, how many would then be able to be put together?

Mr Doogan —I cannot answer that, I am afraid.

Senator LUDWIG —Are you able to say what impact the migration legislation amendment judicial review legislation had on the workload?

Mr Doogan —In general terms, migration work has, in the year under review, made up the bulk of the work of the court—in terms of filings and so on. Again, I can also update tables that I have previously brought to these hearings to show a comparison year by year of the various types of immigration matters filed, including up to 30 January this year. You will see from this table that, so far this current financial year, there has been a significant decline. To put it in percentage terms, last year immigration matters accounted for 82 per cent of the filings in the court and to 30 January this year they had dropped back to 47 per cent.

Senator LUDWIG —Are you aware of any explanation for that?

Mr Doogan —It is probably that the vast majority of the matters that followed on from Muin and Lie have now been disposed of in terms of being remitted to the Federal Court—that is predominantly the reason. They are only now starting to creep back, if you like, in the form of special leave applications.

Senator LUDWIG —Are you able to say with any confidence whether that will be the ordinary workload that you will experience over the next couple of years, if Muin and Lie was a peak in the system?

Mr Doogan —The best I could say, based on experience, is that a significant number—and I cannot put a percentage figure or an actual number on it—will in due course go around in a loop and come back to the court by way of special leave applications.

Senator LUDWIG —I guess that begs the next question: how many special leave applications to the High Court are granted? Is that reflected in your annual report?

Mr Doogan —Yes, it is.

Senator LUDWIG —I will be able to find it from there, thank you. Do you keep a tally of appeal cases? Is the number of appeal cases that are dealt with each year reflected in the annual report?

Mr Doogan —Yes.

Senator LUDWIG —I can deal with that as well. As I understand it, when your annual report was released it was accompanied by a statement from the Attorney-General that suggested that the court was in a state of crisis. Would you say that you are unable to deal with the cases you have before you?

Mr Doogan —No, I would not.

Senator LUDWIG —It does not seem to be the evidence that you are presenting at the moment. It seems that you are actually dealing with the cases.

Mr Doogan —I am frankly not aware of a statement made by the Attorney-General that the court was in crisis.

Senator Ellison —Madam Chair, could we source that comment—if there is any evidence of it? The secretary and I were just querying that ourselves. I am not aware of that being said.

CHAIR —Senator Ludwig, can you help the minister?

Senator LUDWIG —Yes. I have a copy of it here. It is from 22 January 2004 and is titled `High Court workload needs addressing'. I could make a copy available but then I am going to have trouble referring to it.

Senator Ellison —If we could see a copy of the article we could see whether or not that was an indirect quote.

CHAIR —I have a copy of the press release, Minister. Is it a press release, Senator Ludwig? We will get that copied, Minister.

Senator Ellison —Perhaps we could just move on while we have a look at that—

CHAIR —Certainly.

Senator Ellison —in fairness to Mr Doogan. So often we get these situations where something is referred to and it is not provided to the officials.

CHAIR —We will get that back as soon as we can. Senator Ludwig, are you continuing?

Senator LUDWIG —I am always pleased to make a copy available. Would you say that the workload of the High Court is more or less than it has been in the last couple of years?

Mr Doogan —To say that it has been constantly growing is the best way to deal with that. I can give you information to date. Comparing the coming year up to the end of January with the same period last year, the number of special leave applications and civil matters has risen. The number of criminal special leave matters is about the same. Appeals are up in both civil and criminal matters and there is a substantial drop-off in the number of constitutional writ matters. Putting that into perspective, 518 constitutional writs had been filed as of 31 January 2003. By comparison, this year it has dropped away to 130. So I would say that the overall work remains fairly constant but the work associated with constitutional writs and remitter to the Federal Court has declined.

Senator LUDWIG —So you are not experiencing a significant increase in the case load that you are now sharing between High Court judges, it appears. In other words, the work is being done, the matters are being remitted and the court is dealing with the workload. Is that what you are saying now?

Mr Doogan —Yes. I am saying that in absolute numbers it has fallen away to the way it was, say, two years ago.

Senator LUDWIG —So, far from increasing, it has plateaued and is in fact decreasing.

Mr Doogan —Only decreasing in the constitutional writs, and that is the immigration workload. But if you move out of that field into the area of general civil matters, that in fact has increased. Again, at 31 January 2003 there were 307 new civil special leave applications. By comparison, this year in the same period there were 355.

Senator LUDWIG —The immigration matters, then, are no longer, in my words, blocking up the system?

Mr Doogan —No.

Senator LUDWIG —I think we have been covering that for a while, but you are explaining now that it does not appear to be the case.

Mr Doogan —That is right. A large number of them have actually been remitted elsewhere. Again, as we were talking about earlier, they will trickle back.

Senator LUDWIG —They might come around again, but not perhaps at the same time and not in the same number.

Mr Doogan —Yes.

Senator LUDWIG —In terms of the civil jurisdiction areas, is it under control growing at a disproportionate rate? Can you comment on that?

Mr Doogan —I would not say that it was growing at a disproportionate rate; I would just say that it is growing. There may well be, if the trend to the end of January this year continues through to the end of the financial year, that on the civil side there will be, say, a 25 per cent increase.

Senator LUDWIG —Are the resources that the High Court currently has adequate to deal with that?

Mr Doogan —Yes, I would say they are. Of course, included in that is the work from a group that we have spoken about over the last several years—that is, a significant proportion of the work from the unrepresented litigants.

Senator LUDWIG —Perhaps we can either call them self-represented litigants or one day settle on a title to give to these people. Just dealing with that particular topic, it is, as you know, a problem across all jurisdictions. Page 9 of your annual report says that self-represented litigants account for 42 per cent of special leave applications, although 99 per cent are refused. I think we have talked before about what measures you have in place. Have you established any new measures that we have not already covered since that time? As we commented last time we were here, it is not going away and it seems to be growing.

Mr Doogan —It is growing. The 42 per cent that we mentioned was 40 per cent the year before—so in 2002 it was 40 per cent and in 2003 it was 42 per cent. Currently in the year to date it is 46 per cent. So we are fast approaching the 50 per cent mark.

Senator LUDWIG —So what are we doing with that?

Mr Doogan —We have previously discussed the issue of fees; we have previously discussed the issue of the rules and so on. I can simply say to you that I believe this issue will be affected by two things that are current. One is the review of the rules that we are undertaking within the court. That is fast nearing completion and we expect that soon we will be in a position to put those rules out to the profession for comment. One of the changes that we would propose—at least in draft form—is to give consideration to introducing discretion for whether or not there is to be a hearing or whether or not the case can be dealt with on the papers. You will recall, Senator, that that was something we have discussed, but it had also been recommended by the Law Reform Commission.

Senator LUDWIG —I am not sure how it would work in the High Court but it will be interesting to see how it gets developed.

Mr Doogan —Yes. The second aspect relates to the fees. I would anticipate that the review which the department is undertaking as part of the overall civil justice review may have a bearing on that as well.

Senator LUDWIG —I just wanted to return to the High Court workload that needs addressing and give the opportunity to the minister to respond. There are a couple of issues in there and I will go to them first. It is stated:

The Government established the Migration Litigation Review late last year to look at more efficient management of migration cases. The Government is considering the recommendations of the review.

That is the penultimate paragraph to the news release. Is there a final review, is it public and is it available to the committee, Minister?

Senator Ellison —Firstly, can I say that the press release did not say that the High Court was in any crisis or mention the word `crisis' but it did mentioned that the workload needs addressing.

Senator LUDWIG —I think they were my words and I am suggesting that it is in crisis. When you read it, it looks like it is suggesting that it is in crisis. It says, `High Court workload needs addressing'.

CHAIR —Your interpretation, Senator Ludwig; the minister's clarification.

Senator Ellison —I think Mr Govey can now address the question of the status of the review and where we are at on that.

Mr Govey —The report that you are referring to is with the Attorney-General. The question of its release is a matter for him and the government and, at this stage, I am not aware of any decision having been made either to release it or not to release it.

Senator LUDWIG —When was it sent to the Attorney-General?

Mr Govey —I think a close to final draft went to the Attorney just before Christmas and there was some minor editing performed by Ms Penfold. It then went to him in final form around the first or second week of January.

Senator LUDWIG —Thank you. Minister, I am sorry I cut across you. Did you have anything further to say in relation to the news release or will we move on?

Senator Ellison —I think the news release is self-explanatory. It talks about a need for systemic change. It is not criticising the High Court in any way; it is just looking at a more efficient management of migration cases. The review is with the minister and I do not think I can take it further.

Senator LUDWIG —Mr Doogan, did the High Court—or you as registrar—make a submission to the legal aid inquiry that the Senate Legal and Constitutional References Committee is undertaking?

Mr Doogan —No.

Senator LUDWIG —I cannot remember seeing your name. I did not know whether one was in draft or had been provided. Have you had a look at that issue at all, because occasionally they turn up in your court as well?

Mr Doogan —As best we know the situation to be, where a matter has merit and the person simply does not have the resources to fund it, one of two things happens: either they decide for themselves to approach one or other of the legal aid bodies or, alternatively, either themselves or through a suggestion from the court, they will approach a bar association for pro bono assistance.

Senator LUDWIG —I do not have anything further in that area; that has adequately answered the question I asked. Unless you had any further comment to add, we can move on.

Mr Doogan —I have only one quick comment—that is, that the truth of the matter is that many of these cases would not warrant legal aid, on the basis that they are unsustainable arguments being advanced. We know of instances where the reason that people have been unrepresented is that they have been unable to find a lawyer who was willing to put forward the specific arguments that they wish to put.

Senator LUDWIG —And not because of a shortage funds?

Mr Doogan —I am sure there are occasions where there is a shortage of funds, but there are also the other cases where the arguments just are not sustainable.

Senator LUDWIG —Thank you. I do not have any further questions in this area.

CHAIR —Thank you very much, Ms Carolyn Rogers, Mr Christopher Doogan and Mr Howard.

[3.31 p.m.]