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Tuesday, 11 August 2015
Page: 4968

Senator JACINTA COLLINS (Victoria) (16:17): I, and also on behalf of Senator Wright and Senator Lazarus, move:

That the Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015, as contained in Select Legislative Instrument 2015 No. 114 and made under the Family Law Act 1975 and the Federal Circuit Court of Australia Act 1999 , be disallowed.

I move this motion because substantially the same regulation was made by the Attorney-General and disallowed by this Senate on 25 June this year. The Senate disallowed the Attorney's previous unfair fee hike, and he should be ashamed of his contempt of this chamber with his action. The Attorney-General has had the opportunity to use the winter recess to think about a fairer outcome and he has not used this time wisely. Instead, he has lazily registered substantially the same unfair package and he should be admonished for his laziness.

The fee hikes are nothing more than attacks on families in the midst of one of the most difficult decisions any family can make. For many, there is no alternative to paying a court fee if you come to the difficult point in your life where a divorce is necessary. This extra fee is simply a revenue-raising exercise on families at their most vulnerable stage. Last year, 30,579 people paid the full divorce tax. The revenue the government expected to raise in the first year just from the increase in divorce applications was $10.8 million and much of the revenue raised from these increased fees will go to consolidated revenue, not to resourcing the courts, as has been suggested.

The Attorney-General seems to think that there is somewhat of a crisis about access to justice in this country and there are certainly problems, but that crisis is thanks to the cruel cuts by Senator Cormann and the Attorney-General to legal aid and to community legal centres and the consequences of a belated backflip. The increases to family law fees which the Attorney introduced a second time will only compound that problem. People who are going through the painful process of divorce are the last people the Attorney-General and the Senator Cormann should be targeting for revenue.

The Family Court services the most complex of family law applications including those involving child abuse and family violence—not places in which to play. Senator Brandis would be collecting $70.3 million via the increased court fees and only about 20 per cent of those fees would contribute to better funding the courts. The fee increases would include a 40 per cent increase to apply for a divorce. The cost of filing a subpoena would increase by 125 per cent and $125 would be the fee to amend an application where there is currently no charge.

In the Labor Party, we take the will of the Senate seriously and that has clearly been indicated. We also expect that any Attorney-General, as the highest law officer in the land, would set an example to the legal fraternity of appropriate standards for a legal practitioner. The Attorney should be a beacon of propriety. But what do we have instead? We have an Attorney-General who has made a regulation that is substantively the same as a regulation that was disallowed in just the autumn sittings. The Attorney-General has shown outrageous disregard to all senators in this place, including government senators, because this is a matter of standards. I wonder how he even got this through the standard machinery of government.

His regulations are made, almost certainly, inconsistent with the Legislative Instruments Act 2013. What kind of Attorney-General ignores the will of the Senate and, in the process, breaks the law the Governor-General has asked him to administer? This is why Labor launched proceedings in the Federal Court to declare that this regulation is to have no effect. These proceedings were brought by my colleague the Manager of Opposition Business, Senator Moore, and the parliamentary secretary to the shadow Attorney-General, Graham Perrett MP. The case involves the consideration of a simple set of facts. A regulation proposing to raise family law fees was disallowed in the Senate 25 June. A mere 14 days later, the Attorney made substantially the same regulation, raising family law fees but with an additional increase of $5. Outrageous! And the Legislative Instruments Act 2013 prohibits the re-introduction of a regulation similar in substance within six months of a regulation being disallowed.

If these proceedings are successful, it will mean that the second regulation, even prior to its possible disallowance today, never did have any effect. The judge has reserved his decision in those proceedings but has assured the parties that a judgement will be delivered this week. In the meantime, each and every day people suffering family breakdown are paying fee increases that the Senate has already rejected. I think it is incumbent on us to uphold the dignity of the Senate and, at this our very first opportunity, to demonstrate our will clearly again.

The Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015 was made on 9 July, registered on 12 July and commenced on 13 July—a very smooth passage through the machinery of government, this supposed group of adults who, Tony Abbott assures us, is governing well. I see questions in that which the government need to address. The second regulation is in identical terms to the first disallowed regulation except for adding $5 to most of the fees. The explanatory statement that accompanies the second regulation says:

Family law fee increases that were intended to commence on 1 July 2015 under Schedule 2 of the Federal Courts Legislation Amendment (Fees) Regulation 2015 were disallowed by the Senate on 25 June 2015. The Government will reintroduce those family law fee increases under the Regulation with an additional $5 increase.

Outrageous! I look forward to seeing the court's interpretation of that action. As well as thumbing his nose at the will of parliament, the Attorney has included a veiled threat to the judiciary in the explanatory statement. He says:

Given the structural deficits currently facing the family courts, the only alternatives would be to cut frontline court services, close registries and not replace judges, which would severely undermine access to justice.

This is a veiled threat to the judiciary. But, as I said, the Attorney-General's ultimatum does not take into account the fact that only a small portion of the revenue he intends to raise will go to the courts. The second regulation was made and the increased fees were implemented after parliament recessed for the winter break. There has been no opportunity for this parliament to disallow this regulation before the fees were implemented—again, contemptuous of this parliament. From 13 July and each day the court registry has been open since, the Attorney-General has been collecting, on average, about $67,000 in revenue through these increased fees—$67,000 each day, in contempt of this Senate.

This divorce tax is bad for the community. We have disallowed it once. We should not have to do so twice, but it has been re-made by an arrogant Attorney-General, who is not fit for purpose. He is already known for interfering in police investigations. He is the same man described by the national president of the Australian Lawyers Alliance as someone who 'lacks judgement'. We have seen that. He has spent more than $20,000 on bookshelves for his poetry. Let us not talk about helicopters; let us look at bookshelves—$20,000! And, yes, he has tried to ban books from schools that do not agree with his philosophy.

He has politicised his own department, dispatching his departmental secretary to offer an inducement to the Human Rights Commissioner, we will all recall. And the Attorney was rightfully censured by this Senate over that sorry affair. He is no beacon of propriety and Australia deserves better from its first law officer. In fact, I might describe him as the member of the Liberal Party whose sense of entitlement is only second to the former Speaker in the other chamber. Such is his sense of entitlement that when he inherited a fully functioning arts funding model from the previous Labor government, he turned that model on its head. As he outlined in the Weekend Australian, the Attorney-General and arts minister felt that he had nothing to do. How entitled can you be? 'His Excellence'—as that article was entitled—has stripped funding from the Australia Council to establish his own grand private arts fiefdom and to fund his own pet projects—outrageous again! He has no respect for good process, no respect for independent thinking and has evidenced this by the implementation of this unfair divorce tax with no respect for the Senate.

Earlier this year, the Prime Minister promised us 'good government starts today'. If the Attorney-General's disregard for the Senate and his unfair divorce tax are an example of Mr Abbott's 'good government' it is little wonder the Abbott government is so toxic within the community.