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Wednesday, 9 October 1996
Page: 3827


Senator ABETZ(6.29 p.m.) —I rise to join this debate just to clear up a few matters that have been raised. The previous contributor to this debate raised the very emotional aspect of domestic violence applications. If the honourable senator was aware of restraint orders that are made—I do not know how often or on what regular basis I used to do restraint orders on behalf of clients—she would know that they are filed 99.9 per cent in the state jurisdictions because they are so much quicker and cheaper. To get a domestic violence restraint order in the Family Court these days is virtually unheard of. These days emergency ones are quite often brought by the state police or, indeed, by private practitioners but in the state jurisdiction.

While it is, with respect, a convenient and emotional argument to latch onto, it is fundamentally flawed because, with what is before the Senate this evening, we are not dealing with a federal jurisdiction. If we are to get into this debate and try to pick on emotional areas, let us make sure that we get our facts right. With respect to the contribution that we have just had, it was wrong, wrong, wrong.

It was further suggested by the previous contributor to this debate that this was an outrageous attempt to try to grab money from those less fortunate within the community. Madam Acting Deputy President, you have to ask yourself the question: how many people do you put into that category when you take cognisance of the fact that 40 per cent of people making application to the Family Court get their fees waived already? Are you going to say that there are more than 40 per cent of the population who are underprivileged? I do not think that argument is sustainable.

If you look at the usage of the Family Court in particular, which is the one area that has excited a degree of interest, the socioeconomic range within the community at large is, in fact, reflected in the Family Court. Those who we might say are very poor as a percentage of the community use the Family Court just as much as those whom we might call absolutely filthy rich; they use the Family Court according to their percentage as represented within the community. I do not think we can honestly argue that this will hurt those in the lower socioeconomic group, unless you assert that in excess of 40 per cent ought be considered to be in that category. With the greatest of respect, I do not think that that argument is sustainable.

We were then told that there are some people who are clearly unable to afford the fees but who would not necessarily be in possession of a Medicare card or a health benefit card which would provide automatic waiver of fees. That is correct. But what the family courts are preparing—and this used to be the case, I might add; those of us who practised in the jurisdiction who are not dealing with cheap political points but with the facts and know what occurred are aware that this used to happen—is a form that you simply fill in stating your financial circumstances. It used to be the case that, on face value, the details stated on that form were accepted as being the truth, and the registry would then waive the fee. You would simply have to swear it in front of a JP—a very simple form that could be filled in very quickly.

Of course, those accessing the Family Court have to fill out and sign forms in front of a Justice of the Peace or whomever in any event, before they can actually lodge documents and get an appointment with the Family Court. So it will not be any extra work, and the person who is making application for the waiver of fees will not be put on the stand to be cross-examined by the Registrar of the Family Court to see whether or not they have told the truth in that form. Of course, a penalty ought apply in the event that they are shown to have misled the court. But that really is not something that is likely to occur.

If, as expressed, there is all this moral outrage about these fee increases, Madam Acting Deputy President, you have to ask the question: why wasn't there this same moral outrage previously? If we look at the cost recovery rate within the community at large, we see, for example, that in the High Court in 1992-93 the cost recovery rate was 3.3 per cent; it will go up to about 8.9 per cent. In the Federal Court where we might be looking at about 53.9 per cent, do you know what the recovery was in 1989-90? Fifty three per cent. Under the Labor regime, they were pursuing 53 per cent cost recovery rate from the Federal Court—yet they come in here only a matter of seven years later beating their breasts about the injustice of a cost recovery of an extra 0.9 per cent. How shallow, how hollow, is that sort of assertion when confronted with the facts of what their administration used to engage in.

It is very easy to get emotive about these issues. I am simply trying to provide some facts and figures, and set out how the system has worked in the past. In 1989-90 the Family Court had a cost recovery rate of 17.9 per cent; under our proposals, it will slip up to 22.5 per cent—hardly the sort of percentage increase that would make people pull out their hair. The Administrative Appeals Tribunal had a 2.1 per cent cost recovery; our proposals would increase that by one per cent to 3.1 per cent. It is hardly anything of great moment that we are discussing.

It does perturb me that I need to make a comment about the submission of the Law Council of Australia because I am, in fact, a member of it and the family law division. As Senator McKiernan would know, I asked a question at Senate estimates in relation to the quite emotive letter of the Law Council of Australia about the consequences of these fees. Let me read to you what they wrote to honourable senators. In the second paragraph of a document dated 6 September 1996, they stated:

In particular, the Law Council of Australia and its Family Law Section are deeply concerned at the impact the new fees in the Family Court will have on families already struggling with the inevitable economic consequences of marriage breakdown.

Keeping in mind that the first 40 per cent of the lowest socioeconomic groupings will be exempt in any event, you have to ask yourself: how are the family law fees that lawyers charge set? Unless there is an agreement outside of the regulations, we are required to charge as per the regulations of the Family Law Act. And do you know what? Each year or every two years, whenever there has been a fee increase for lawyers, which will impact and have the inevitable economic consequences on these struggling families, not once have they complained and said, `These poor struggling families cannot afford our fees.'

The Law Council of Australia has always accepted the fee increases for its membership and accepted that as being completely acceptable and reasonable. I have to say to you, all in all, that that is a reasonable attitude for them to take. But when they themselves accept the fee increases they cannot then turn around and beat their breasts, and prevent the government—indeed, we not talking about the government as such but the average Australian taxpayer—from trying to get some cost recovery back from a system that those people are using.

The reality is that we as a government would prefer that nobody access the Family Law courts—that people could come to some arrangement between themselves. If they cannot come to that sort of arrangement, they want the benefit of a taxpayer funded mechanism called the Family Court of Australia. But the question has to be asked: why should that total burden fall on the taxpayers at large without there being a contribution from those who are unable to come to a resolution? Of course, if you do make an application and you are successful, there is always the possibility of getting an award for costs against the other party, so those fees that may have been paid up-front can potentially be recovered. I suggest to my friends in the Law Council of Australia that it is somewhat disingenuous to accept fee increases for yourself but then deny the taxpayers of Australia the same right.

A previous contributor in this debate made comment about the opposition's policy backflip on this and also the government's policy backflip in relation to these fees. When we were in opposition and joined forces to disallow some of the increases in fees that were being pursued by the then government, we on this side said that we were not necessarily opposed to some measure of cost recovery where this would enhance sound management of the judicial system. We are on the public record as saying that we do not oppose fee increases per se, just as long as they can be shown to be of general benefit.

When you look at the state jurisdictions having, in general, a cost recovery of approximately 30 per cent from the users, there are no cries from those on the opposite side that that is somehow inherently unjust. If it is not inherently unjust for the states to get a 30 per cent cost recovery from their judicial system, why is it that it is somehow inherently unjust for the Commonwealth to do so? That really is the argument that they have to put up in this place to try to convince those people who are genuinely thinking through the real issues on a logical basis—not those motivated by politics or cheap calling upon the emotions of domestic violence and other very unfortunate situations that we face within this community. We will be looking for the answer as to why it is not inherently unjust for the states but somehow it would be for the Commonwealth.

Let me say to those opposite that Senator Michael Tate, a former senator from my home state of Tasmania—who, I note, wants to enter the priesthood after having resigned his ambassadorial position to the Netherlands and the Holy See—said in the disallowance debates in 1992:

But, basically, the fees are being levied in order to assist the Federal Government to discharge its obligation to fund the system of justice, which we are obliged to do if our society is to remain one governed by the rule of law, and the contribution, running into some millions of dollars, certainly would be very helpful in that regard.

He then went on to say:

It may well be that $500 for a hearing in the Federal Court of Australia when one is paying thousands of dollars a day for counsel is not an extravagant amount at all. It could well be increased to help defray the costs which are otherwise borne by—

who did Senator Tate say?—

the ordinary taxpayers of Australia.

Those opposite try to be critical of us by saying that this is a grab by government for money. It is not a grab by the government because, if we as a government do not get the money, who foots the bill? That is something that those opposite still fail to grasp. That is why they got this country into such a horrible economic mess. They only thought about government, and if the government did not raise the money, well, they put it on bankcard. The reality is that one day the chickens do come home to roost, and who has to foot the bill? It is going to be our fellow Australians—the taxpayers whom we are obliged to represent in this chamber.

I believe that we owe a duty to encourage people not to use the system and if they do avail themselves of a taxpayer funded system to make some, albeit very small, contribution to the overall facility that is thus provided by the ordinary taxpayers of Australia. Those who want to use the court system—and I accept that the vast majority of them don't but circumstances unfortunately make it such that they find themselves within that predicament—ought to make a contribution if they can afford it, and that is a very important caveat.

There are a lot of other matters that can be raised but what I think the salient point for those opposite to come to grips with is: why is it okay for states to get a 30 per cent cost recovery but somehow inherently not for the Commonwealth to do so? Why is it just for the ordinary Australian taxpayer, the battlers out there, to help fund and subsidise, especially in the Federal Court jurisdiction, those actions that have been taken by companies against each other and have reduced filing fees in that jurisdiction? It really does defy logic.

The other matter—and I think this is the most serious one—is in the family law jurisdiction where 40 per cent of those users accessing the Family Court already get all the fees waived. Are you going to tell us that more than 40 per cent of the community are somehow in a poverty trap that they cannot make a contribution? If that is your argument, it is a very real indictment on the mess that you left this country in on 2 March when the government of this country was handed over to us courtesy of the Australian electors.

You cannot sustain that argument. If you did, it would show you people up in a light that I am sure you would not want to be in. Even those of us on this side who accuse you of economic mismanagement would never go as far as to say that virtually 50 per cent of the population was somehow put into a poverty trap by the previous 13 years of the Labor government. There really are some fairly fundamental issues that those on the opposite side have to come to grips with if they are to sustain their argument against these fees.