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Thursday, 12 December 2002
Page: 8037

Senator LUDWIG (11:50 PM) —The opposition opposes schedule 2 in the following terms:

(3) Schedule 2, page 11 (line 2) to page 13 (line 12), TO BE OPPOSED.

This amendment on sheet 2784 relates to schedule 2, fees for application. Clearly, we oppose the inclusion of a filing fee for unfair dismissal applications in the Workplace Relations Act. The government first introduced the filing fee by regulation. I am sure the minister opposite would recall that it claimed then, as it does now, to be acting to deter frivolous and vexatious applications. But it is worth reminding the government what the Access to Justice Advisory Committee said about filing fees in its 1994 report on access to justice. It is a lengthy quote but I think it helps in this instance. It states:

Court fees may be used as a means of deterring frivolous litigation. Clearly, however, the deterrent effect will vary according to the means of the particular litigant. The present fee structure may well deter poorer litigants with substantial claims; yet not deter wealthy litigants from vexatious or tactical use of the courts. If courts fees are to be used as a deterrent, there should be a closer link between the fee and the degree of frivolity of the case. For example, one approach is to reduce or even remove fees, subject to a power in the court or tribunal to order cost recovery where an application is judged to be frivolous or vexatious.

Labor moved to disallow the filing fee in 1996 on precisely this basis. A person with a substantial claim and limited resources may well be deterred, while a person with a frivolous claim and ample resources would not be deterred. It is helpful to reflect again on the case of Pettit v. Readiskill LMT Mildura 2001—involving a self-represented litigant—which I mentioned earlier in the committee stage. It appears that that applicant was not deterred by anything; this self-represented litigant, who may very well have been of very limited means, proceeded to the full court of the Supreme Court of Victoria. I would not like to hazard a guess at the expense that that has caused. I do not know whether a $50 filing fee would have deterred him, but I can assure you that if he had had the ability to go to a tribunal we would have all encouraged him to go there to fight his case by himself—without a $50 filing fee. This would have avoided the expense of a full court hearing. I will spare you from hearing the one-liner again.

The regulation will cease on 31 December 2003. Given the potential for any court fee to act as a barrier to justice, it is appropriate that the government remain accountable to parliament when imposing such fees. If you are going to impose fees, it is far better to have a regulation than to prescribe them within an act. It is very unusual to take this course, but of course the government's idea is not about dealing with delegated legislation in an appropriate and proper manner. In this instance, the government is entrenching the filing fee as a political gesture rather than as a genuine attempt to ensure a fair go all around for employers and employees. I seek the committee's support for opposing schedule 2.