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Wednesday, 1 September 1993
Page: 792


Senator VANSTONE (4.48 p.m.) —I endorse the remarks made by Senator Cooney. I say that not only because I do endorse them but because it will save me going through the litany of people who have served on this committee for extended or limited periods of time. Senator Cooney is right when he says that he hopes every member of parliament looks at this report. From other committees that I have served on, I know that when we have been involved in something and have put a considerable degree of work into it, ego can lead us to believe that everyone, if they had the time, would find the report fascinating. That is not the case here in that, while I do believe people will find the report fascinating, it is not because it is something that I have spent a large amount of time on—as Senator Cooney and others have—but because The Cost of Justice second report has something to say about the involvement that every one of us has in increasing the cost of justice.

  It is all too easy for parliamentarians to take a free kick against the legal profession on radio and in the media. It is easy to have a crack at a lawyer. We could not find an easier ride into the media. If we ring them up and say we want to get stuck into the legal profession, we will be on radio for sure, because it is so easy to say, `People cannot afford to use the courts. It is all those lawyers. They all drive Mercedes; they all have big houses; they all overcharge; and they are all crooks'. Of course, that is simply not true. The legal profession does have a role to play in reducing the cost of, and increasing access to, justice. But sometimes it is very easy for us to neglect to look at the impact we have on increasing that cost.

  I refer to the table on page 18 of the second chapter of this report. We cannot judge the complexity of something simply by its length. In fact, I think when we put the Social Security Act into plain English it became longer, but it did become more comprehensible. So I do not say that size alone is an indicator of complexity and therefore cost. But it is of some interest to note that, in 1980, 177 acts were passed with a total of 1,860 pages. In 1991, we passed 216 acts—not a very big increase—but with a total of 6,905 pages.

  What if there is a similar increase in delegated legislation? My colleague Senator Patterson would be interested in this as she has served for a long time on one of this chamber's delegated legislation committees. The 1,199 pages of delegated legislation in 1980 increased to 3,144 pages in 1991. This massive, exponential increase in legislation makes access to the law much more difficult for someone who does not have the capacity to go to the government bookshop and buy the relevant legislation and read it all themselves—the nightmare that that is, even for the legal profession. It does restrict their access. Those who do not have that capacity have to pay someone to do it. No-one expects the legal profession to be good Samaritans and do this work for nothing.

  We sit here saying, `This is very important; we need this amendment; we need this act of parliament' and then we just toss it on to the pile of complex legislation. We somehow imagine that it will be easy to put into practice, that it will be easy for people to operate with that legislation at a minimal cost. Every time we add to the pile, we add to the cost of implementing that legislation, to the cost of complying with it and therefore to the cost of and access to justice. We could do well to pay significant attention to this report if only to look at chapter 2.

  Senator Cooney paid significant attention in his very well considered speech to chapter 1. That is the chapter which I would recommend members and senators pay significant attention to. In short, it says this: the theory may be that parliament keeps a check on the executive, but the resources are such that the executive holds nearly all the cards in the deck. Someone may say, `So what? It has been like that for a long time'. We say that it is getting worse.

  If we actually believe in the parliamentary system, if we think parliament is meant to be here to keep a check on the executive, and if we realise that parliament is under-resourced, then we should not be embarrassed about saying that parliament needs more money and more resources to do its job properly. Surely that is what the system is about.

  When people elect you, Mr Acting Deputy President, me, and members of the Senate and House of Representatives, it is not just a contest to see who will become the executive and then, `All over red rover, everyone go home'. If that were the case, firstly, we would have a unicameral system and, secondly, the party that formed a majority would simply form an executive government. Everyone else could say, `Bad luck, you entered the contest but your team did not get enough players, so you are out'. We would not bother having an opposition; we would not bother having Greens and Democrats and Independents. We cannot bring ourselves to say that because we do not want that to be the case. We want there to be a healthy opposition and a range of parties keeping a check on the executive. If we believe that, then we have to resource it properly.

  If senators and members care to reflect on the first chapter in this report, they will see what may look to some like pretty boring reading, but it goes right to the heart of what our task is all about.

  The third chapter in this report deals with court funding. After all, we are responsible for that in the end. The judiciary wants its independence. It is entitled to it. That is the system we need. Nonetheless, it needs enough money. As the population rises, more people find themselves in a position where they need to go to the Family Court or the AAT and they should not have to wait weeks and weeks. The courts should not be jam-packed, lousy, tatty backroom offices, because that is what they are. That is where people go to get some adjudication as to whether the laws of this nation have been followed properly in their favour or otherwise.

  In the nine years that I have been here, I have not heard—I say this to my own embarrassment because I could have raised it—a really shebang debate on court funding. Yet the courts are the administrators, if you like, of the system that we produce. We seem to dish them out a bit of money, give them a little bit of an increase here and there and think that we can leave it at that.

  Court fees and charges are dealt with and that is also worth looking at. By and large, a lot of court fees and charges cannot be put up without our approval, although a lot of those changes need to be made. They may be made by instruments that are tabled and perhaps not brought to our attention. An example has been raised—in the end, I think it got left in this report—of changes to the Family Court rules requiring pleadings to be reintroduced. That went through here without a whisper.

  The Family Court practitioners came to us and said, `This is massively increasing the costs for our clients. If we have to plead things properly, it means we've got to cover every option and that, of course, is something we have to charge for'. What do we find now? We find that the Chief Justice of the Family Court has announced that the Family Court will start to do something about that, if it has not already in practice. We all sit here and get paid to do our job, but it just slipped through and increased the cost of justice to people who needed courts for perhaps the most unsatisfactory of reasons; namely, that their marriage had broken down and they were no longer able to resolve the dispute between themselves.

  A very particular aspect of court fees and charges is worth mentioning and that is transcript charges. I cannot put my finger on an example that was raised, but I will run it from memory to give an example. I am sure it is in this report.


Senator Chris Evans —One dollar a page in the IR Commission.


Senator VANSTONE —I think the Commonwealth charges about $7.50—it might be $9.50—a page.


Senator Sherry —Seven dollars and 50 cents a page?


Senator VANSTONE —There may be a couple of hundred pages in a day. If you have a three-day hearing, then an adjournment and you want to come back to it a couple of weeks later, and you want your barrister to have access to the transcript, you have to pay for it. What is worse than that is that the judges have to pay for it. The Family Court judges do not get a transcript sent up from down below; that comes out of the Family Court allocation and goes to Auscript.

  There are, quite frankly, thousands of black market copies of transcripts all over the country. It is a shameful situation. Judges will ring up practitioners and say, `Did you get a transcript? Do you think you could sheet feed it and give us a copy'. Obviously, a copy would be 5c a page. On other occasions the judge might ring that practitioner up and say, `I've got a transcript. Would you like a copy? I'll sheet feed it through my photocopier'. People should not have to shillyshally around like that because we are so stupid in the way that we run our courts and the transcript charges.

  The example that I was looking for was where a company said it could do the job for $4 a page and all of a sudden we found that Auscript was also able to do it for $4 a page. Then this company offered $3 a page, and Auscript still does it. The reason it still does it, as we understand it, is that there was going to be a mass walk-out by Auscript. In any event, the paragraph that I just cannot put my finger on will highlight this example to show that there should be competition for the provision of transcripts in courts. That is the only way we will get the price down.

  Senator Sherry was surprised at the figure of $7.50; I think it is $9.50. I am sure everyone understands the consequences of leaving those charges at that level. It is just robbing Peter to pay Paul. We appropriate money to the Family Court so that it can give it to Auscript. It is just dancing around paying some money to people when we should be letting that out to private enterprise.

  I cannot recommend strongly enough that members of this place read this report. Firstly, they will appreciate the good work that has been done, and the warning signals that we all experience every day as to parliament being under-funded to keep a check on the executive; and secondly, they will realise the impact that we have every day in increasing the cost of justice and reducing access to it for Australian citizens.