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Wednesday, 9 October 1996
Page: 3822

Senator VANSTONE (Minister for Employment, Education, Training and Youth Affairs)(6.07 p.m.) —In commencing, can I say that, if the Labor Party in its 13 years in government had never come into this place and sought to put up fees for courts and tribunals, what Senator Bolkus had to say might ring as being something he genuinely believed and had always practised himself. Since that is not the case, what he said today stands in stark contrast to Labor's record. I leave that to others to judge in that respect.

Senator Bolkus has made a point which has highlighted the ineptitude of the opposition in this respect. That is, he would have liked to have had some sensible negotiations. The two weeks have past and no offers have been made. What he has not spelt out to this chamber is that an approach was made and it was very clearly conveyed to the government that the opposition were not prepared to negotiate other than on the most unrealistic terms. That is, they put their peg down a very large distance from where the government wanted to be and indicated that that was that—we were either talking turkey at that level or we were out of the ballpark. So they in fact picked up their cards and walked away from the table.

Senator Bolkus —I don't think that's right.

Senator VANSTONE —That is my understanding of it, and that is my description of it to this chamber. They did that without realising that in the end they would have to come back to the table and vote. They can do as they choose, but all the government can do is say, `We want to talk to you about this.' If we get the cold shoulder, if there is a clear indication that no real negotiations will take place, we will not waste our time talking with those parties anymore.

I make another point: Senator Bolkus at least once, if not on other occasions, indicated that this aspect—that is, the cost of courts and tribunals—is the one critical issue where we can have a say vis-a-vis the cost of justice. With the greatest respect, he is mistaken in that view. The fees in courts and tribunals have a role to play in the cost of justice. But, as Senator Cooney would know—and as I and other senators in this place who participated in the cost of justice inquiry know—the fees of courts and tribunals are but a part of the high cost of justice. They are not the sole indicator of it. They, like the cost of justice itself, move with time.

Clearly, the government wishes to oppose the disallowance motion as tabled by Senator Bolkus, but I do want to underline that the government—I in particular, along with other senators here—as I have indicated, has an abiding commitment to access to justice. We may go to that path by a different route than the previous government would have gone, but that does not mean we do not have that commitment.

We are also committed to ensuring those who make use of government services make a reasonable contribution to the cost of those services. On attaining office, we were faced with the legacy of the $8 billion black hole, the Beazley bankcard. This government was not afraid to take the decisions which had to be taken to deal with that legacy of our predecessors. We were not prepared to walk away from that black hole, as the previous government did. If we did walk away from it, we would be walking away from the weakest in our community, those who would benefit the most from having a government that has the strength of character to keep the fiscal matters in order.

One of the major commitments we made to the Australian people was a preparedness to make those hard decisions—they made the mess; we are prepared to fix it. We also said that, to the greatest extent possible, the pain would be shared across the whole community.

One area where it seemed clear that an adequate contribution was not being made was in relation to those who use the resources of the Commonwealth's courts and tribunals, many of whom stand to make significant gains. Indeed, until the major increases levied by our predecessors on 1 January this year—and I just wonder whether Senator Bolkus was aware of that—the level of cost recovery in Commonwealth courts and tribunals had fallen from a high of almost 21 per cent in 1989 under a Labor government to about 12 per cent in 1995.

For the information of honourable senators, I might point out that the cost of running the Commonwealth's courts and tribunals has risen from about $81 million in 1989 to over $230 million in the current financial year. These are massive increases in outlays. The cost of running the Family Court alone has risen to in excess of $100 million per annum. Perhaps as an indication of the cost of providing these services one need only look at the Federal Court, which has estimated that it costs in excess of $6,000 a day to keep a judge in a court.

To make some assessment of what was a reasonable contribution, the government looked at the average levels of cost recovery in the states and territories, and this averaged at about 30 per cent. We have taken decisions to move cost recovery across the Commonwealth system to that level. We continue to believe that this assessment was not unreasonable. The increases were spread across all the courts and tribunals, but they were not uniform in their impact. The government recognised, for example, that the special nature of the Family Court and the matters it deals with mean the same fee levels should not apply to the Family Court as to the Federal Court.

The changes we enacted meant that the level of cost recovery in the Family Court was estimated to rise to only 23 per cent whereas the increases in the Federal Court would raise cost recovery in that court to in excess of 50 per cent. So the differences between the Family Court and the Federal Court, as highlighted by Senator Bolkus, were in fact acknowledged in the lesser cost recovery being sought by the government in the Family Court.

We were concerned to ensure that the disadvantaged would not suffer because of these increases. At the same time as we moved to increase the level of cost recovery to its current estimates, we also moved to ensure that there was a uniform and fair system of exemptions and waivers in place to protect those who could not afford to pay. I remind the Senate that the Family Court now waives fees in approximately 40 per cent of the cases. Let us not pretend that every litigant in the Family Court is hard up. No-one pretends that, hopefully. Let us acknowledge that that court waives approximately 40 per cent. Clearly, those who cannot afford to pay, do not. This will continue to be the case.

Having set out the government's reasoning in bringing in these fees, we are aware of concerns that have been expressed about some of the impacts that the fees as currently imposed may have. While these concerns have not been expressed across the whole community, there have been issues raised by those in the legal profession and some in other groups that the government is concerned to deal with.

We do not believe that there needs to be significant movement from the fundamental structure of the fees as currently imposed. They have been designed so that those who use more of the system's resources should make the greatest contribution. The new daily fees for hearings in both the High Court and the Federal Court are examples of this approach. The introduction of a one-off hearing fee in the Family Court is another example.

As I indicated earlier, the government has considered the concerns that have been expressed. I would like to outline now for honourable senators the revised position that the government believes will take account of many of those concerns. Some concerns have been expressed in relation to the new fee regime in the Family Court. The government attempted to restrict the increases in that court and will make further efforts in that regard. The major reason behind the introduction of the fees for ancillary relief and the one-off fee for hearings was to ensure that those who use the greatest share of the court's resources—those seeking additional relief and those taking matters to a hearing—should make a larger contribution.

To partially offset this reduction, the government has decided to make a small additional increase to the fee for principal relief. The current fee will rise from $460 to $500. We propose to reduce the fee for ancillary relief from its current level of $250 to $150. Given the high level of waiver in the Family Court and the reduction in the fee, we believe that such a fee should be well within the reach of those who do not fall into the approximately 40 per cent of those whose fees are waived. In addition, the government will reduce the one-off hearing fee from $400 to $300 to reduce the impact of that fee.

Senator Bolkus —From $400 to what?

Senator VANSTONE —To $300. In the Federal Court there will be a number of changes. Firstly, we will ensure that for unlawful dismissal matters, the fees payable in the Federal Court will be no higher than any payable for a similar matter in the Industrial Relations Commission under the new workplace relations legislation. There will be other reductions in fees in the Federal Court. The application fee for a non-corporate litigant will be reduced from $800 to $500 and from $1,600 to $1,200 for a corporate litigant. Applications to the court by creditors under the Bankruptcy Act will have the current fee reduced to the same level. The fees for lodging a cross-claim will be similarly reduced. I remind the Senate that there are no fees for the lodgment of a debtor's petition.

The daily hearing fees will be reduced from $550 and $1,100 to $400 and $800 respectively. In addition, the first day of hearing will not incur a fee but will be regarded as being included within the setting down fee. Fees for setting a matter down for appeal will be reduced from $1,500 and $3,000 to $1,000 and $2,000 respectively. All other fees will remain the same.

As I stated earlier, the government believes that this approach to the new fees in each of the courts and tribunals was reasonable and necessary in light of the difficult budgetary position that it found itself in. We have, however, made these significant concessions to deal with the express concerns. I point out that these concessions will significantly reduce the revenue expected.

The opposition has made much of its claims about the impact of the new fees. I could pick a number of significant holes in the figuring of Senator Bolkus in his worst case scenarios but, given the concessions made by the government, those scenarios will no longer even be a possibility.

I would like to make some comment on those who repeatedly say that the courts are only for the wealthy or the very poor. It is a criticism regularly echoed by those who offer no evidence to support their sweeping claims. Indeed, Chief Justice Gleeson of the New South Wales Supreme Court noted in 1992 that, despite the claims I mentioned earlier, the great majority of litigants in his court appeared to be neither very rich nor very poor. Such evidence as there is suggests that most individual litigants come from middle income groups.

Making reasonable charges for the use of Commonwealth courts and tribunals does not deny access to those who need to use the system for the resolution of their disputes. For some only a system which is free of any fees would be appropriate. But for the vast bulk of the community there is support for those who can afford to make a contribution being obliged to do so.

I believe that with the changes I have announced the government has struck an appropriate balance between the need for proper contributions to be made by those who stand to make often significant gains from the Commonwealth's courts and tribunals and the need for litigants to make a reasonable contribution to the costs of running the system.

Dependent on the result of this debate, obviously, the government will move to make the necessary changes to the existing fees as from 1 September 1996, with the exception of the new fee for applications for divorce and nullity, which will operate as soon as the necessary changes to regulations can be made.