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Monday, 17 March 1997
Page: 1557

Senator MURRAY(3.19 p.m.) —The Family Law Amendment Bill is another attempt by the government to `economically rationalise' the judicial system of this country. Under our system of government the federal constitution provides for a separation of powers. That the separation of powers is very far from practised in our system does not invalidate the principle. I know the separation of powers has come under significant assault from the conservative side of politics of late. I take special note of Senator Bolkus's recent statements vigorously defending the High Court and the many distinguished Australians who have sat and do sit on that bench.

The separation of powers doctrine is an aspect of our democratic principles and

aspirations which needs vigorous defence and promotion. It is important that the judiciary is specifically separated from the legislative and executive arms of government. This is not an accident but a necessary democratic protection to ensure the courts so far as is possible are free from arbitrary political interference.

I have mentioned the separation of powers doctrine not only because it is topical but also because the judiciary, as an independent institution of the people, should be preserved from very partisan and politically motivated criticism of its operation. No institution is above criticism, but we have to be careful that criticism of the kind that is current does not result in damaging our freedoms, our rights and our hopes.

Last October my colleague Senator Stott Despoja made a number of remarks during a debate to disallow hefty increases in court fees levied by the government during the last budget. In some cases those fees were increased by as much as 713 per cent. When that occurred, the principles of common and easy access to justice effectively went out the window. The best the government could come up with at the time was to say that substantial exemptions were built into the regulations. That is simply not good enough.

There is a vital principle at stake here: the existence of an exemption does not meet the criterion for universal access to justice. This is a government that is continually getting into trouble on this front, as per the legal aid debate. This is a government whose artery bypasses its heart and its soul, and is directly linked to its pocket. I seek leave to have incorporated in Hansard a table showing the fee increases that this government made last year.

Leave granted.

The table read as follows

Family Law Amendment Bill 1996


Tabled by: Senator Andrew Murray (Western Australia)

Australian Democrats Spokesperson for Attorney-General's and Justice

* Denotes new fee introduced by the 1996 budget

Individual FeesCorporate Fees
Application under rule 1 of Order 55172%443%
Writ of summons or petition172%443%
Civil Special leave application308%716%
Criminal special leave application--
Application under s.40 Judiciary Act713%1,526%
Notice of Civil Appeal172%443%
* Application for summons (per half day)$250$500
* Application for summons (directions)$250$500
Setting down fee for civil appeals (currently called hearing fee)144%387%
Transcript (per page)1,650%1,650%
* Hearing fee for civil appeals$750$1,500
Searching or inspecting docs--
Filing an initiating proceedings117%335%
Filing a document originating application for leave 63%227%
Filing a notice of appeal instituting an appeal62%225%
Filing a notice of appeal instituting an appeal (AAT)62%225%
Petition under the Bankruptcy Act (no other fee)117%335%
Application under Bankruptcy Act117%335%
Filing a Notice of Appeal63%226%
Filing a notice of motion98%297%
Setting Down fee (date of court case)62%225%
* Lodging cross claim$800$1,600
* Issuing subpoenas$40$40
* Hearing fees for notices of motion$200$400
* Hearing fee per day$550$1,100
* Setting down fee for appeals$1,500$3,000
* Hearing fee appeal against a decision of a judicial registrar (1/2 day)$200$400
Request for copies of documents--
For each page
* Searching files (per search)$20$20
* Taxing of Bills of costs$7.50$7.50
* Poundage$2.00$2.00
Principal Relief (divorce/nullity)25%
Anciliary Relief$250
Setting down fee$400 (court hearing date)
Voluntary Counselling and mediation$40
Application fee (refundable to successful applicants)36%
Application fee (refundable to successful applicants) Fee for inspecting the Register36%

Senator MURRAY —This unspecified increase in this bill is in addition to those extravagant increases last year. My colleague Senator Stott Despoja ably set out the arguments on 9 October 1996 when she said:

The government has made no bones about the fact that it expects the judiciary to provide a greater cost recovery process . . . `user pays' is a term that should have no place in the justice system in this country . . . We believe very much that the ability to walk into a court and have your grievances dealt with in a fair, efficient and just way is actually a right of citizenship. It is not a luxury. It is not an extravagance . . . The proposition that health care card holders will be given exemption denies the fact that not all deserving cases will be holding health care cards. I cannot think of anything more abhorrent than a woman—

who has been the victim of domestic violence—

. . . having to argue why she should be exempt from filing fees.

I could not agree more. Should this bill progress to the committee stage, I will be asking questions regarding the extent to which the government has factored in the impact of this fee upon women who have been subjected to domestic violence and I will be asking questions regarding other matters.

In the 1994-95 annual report of the Family Court of Australia, it was reported that the counselling service of the court dealt with 32,378 cases. I think that is a figure worth repeating: 32,378 cases—an increase of 7,800 on the previous year. About half of all counselling was voluntary and held before the parties filed for divorce. According to the Family Court, most of the voluntary counselling was aimed at settling issues like property and maintenance rather than at the reconciliation of relationships.

The second reading speech of the Attorney-General (Mr Williams) gives no indications on whom the proposed fee would be levied. I suppose the government will say that it will sort out these details when the regulations are made. But, if that is so, it is not good enough. We do not know how the fee will be imposed, whether it will be up-front or collected at an hourly rate; nor is there any indication as to who—one or both of the parties—will pay the fee. This fee has the potential to become yet another financial issue that has to be negotiated between parties during what are ultimately quite complex financial settlements and for litigious parties to wrangle over.

To the extent that many women and some men will be in an inferior bargaining position through either domestic violence or other factors, this fee has the potential to militate against them as parties in family law proceedings. The fee that this bill would usher in would cause a cost of $40 to be levied against users of those services, or so it appears. In the 1996-97 budget statements for the Attorney-General's Department, the government expects the fee from voluntary counselling to raise $835,000 in 1996-97—rising to $1.9 million in 1998-99, being the first full financial year in which the measure will take effect.

I wish to now pay some attention to the revolutionary changes that have occurred in family law. In general legal matters there has been a welcome shift from the adversarial system of dispute resolution towards a more alternate model that seeks the agreement of the parties through counselling, mediation and conciliation. But in family law such methods are sometimes only partially welcome. Evidence has accumulated that alternative dispute resolution can in fact have a downside.

We must be careful not to embrace models as complete and total solutions. Sometimes a mix of solutions is better, because many things do have a downside. By way of example, I cite the report by Dr Hilary Astor in 1991 regarding mediation and violence against women. In cases where domestic violence had occurred, that report illustrated the inappropriateness of mediation due to the relative unequal bargaining position of the victim as against the perpetrator and the psychological disadvantages of being placed in that position. Fees for these services can work as a disincentive to enter into counselling. On that basis, these fees should be condemned. The government has obviously yet again not taken into consideration the possible social and family consequences of its revenue driven approach to deficit reduction.

Even so, the Australian Democrats do support government and community moves that divest conflict from adversarial forums and work towards using the cooperative power of individuals. It is a trend that is ushering in a cultural change for users of Family Court facilities. According to the court's annual report for 1994-95, only about five per cent of cases before the court are now litigated. If nothing else, this signifies a welcome cultural shift that is occurring towards dispute resolution in this country. Testimony to this change has come from eminent lawyers in the field such as Mr David McKenna, who has practised in the family law jurisdiction for the last 33 years in suburban Melbourne. Mr McKenna reports to us that, where previously few people used to contemplate alternative dispute mechanisms or counselling, now this is relatively the norm.

I cannot emphasise enough that what the government is seeking here is mean spirited, tight-fisted and, in the view of the Australian Democrats, totally unnecessary. We all know prevention is better than cure. But how do you measure prevention? We will never be able to ascertain the number of suicides and domestic violence cases that will not occur because of Family Court counselling and mediation. The Family Court is not a milkable deficit reduction cow; it is a sensitive social mechanism.

Counselling and mediation are preventative measures and should be seen as buffers against costly and time consuming litigation. It stands to reason that, if these buffers are removed, or at least are made unattractive to litigants or are made more difficult to access, the focus will necessarily have to be on remedial programs and shift back to litigation. For these reasons and the reasons I have outlined earlier, the Australian Democrats will not be supporting this bill and will oppose it at the second reading stage.