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Thursday, 10 October 1996
Page: 3887

Senator McKIERNAN(12.04 p.m.) —As I was saying when I was interrupted last evening, if the opposition had not taken the stance that it had on these dramatic increases in court fees and charges, we would be abrogating our responsibilities as representatives of the public. Truly, what was proposed, and what still is proposed with the amendments Senator Vanstone foreshadowed last evening, is still draconian.

The opposition is operating under some difficulties here today in addressing this matter. Some three weeks ago, after the estimates committee processes in detail when we addressed the reasons why these charges had been increased so dramatically, we put a series of questions on notice regarding the increases in fees to the High Court, the Family Court and the Federal Court.

The opposition, and indeed the Senate, is being treated with disdain by the Attorney-General (Mr Williams) and the Attorney-General's Department. We have not got responses to the questions that we put on notice to the Attorney-General and his department some three weeks ago. We have got somewhat of an explanation as to why we have not got answers and responses to questions by way of an undated letter from the Attorney-General to the chair of the committee, Senator Ellison. He writes:

Dear Senator Ellison

I am writing regarding the provision to the Committee of responses to questions taken on notice at the estimates hearings on 17 and 19 September 1996 for my portfolio.

You will be aware that an exceptionally large number of questions had to be taken on notice and that some of these questions are quite extensive and detailed. In addition, there was a considerable delay in the Hansard office placing the record of 19 September on the Parliamentary database for our access.

My Department and I will endeavour to provide the Committee with as many responses as possible by 4 October 1996—

today it is 10 October 1996—

and I hope to be able to provide the remainder to the Committee by 9 October 1996. However, I must note that this may not be possible in every case given the detailed nature of some of the questions asked.

Here we are on 10 October 1996 and we have not got one response to one question that was placed on notice on these very important matters. I do not know what the intent of the Attorney-General is in doing this. I do not know why he should treat the Senate with such contempt. It is something that the Senate should address. It is certainly something that the members of the Legal and Constitutional Legislation Committee will be addressing when the Attorney-General's Department appears before it in two weeks.

There are some difficulties—there is no question about it—because of the way the government has cut back the funds to Hansard. The Hansard is not able to be delivered in the timely manner it used to be able to be delivered. Maybe that is a decided plot by the government to keep matters hidden from the committee as well. I notice that the chair of the committee is coming into the chamber. I suspect that he will continue his remarks on the legislation committee's report to this chamber on this very important matter. Information is being denied to the Senate.

The committee met on 17 and 19 September, where we addressed questions to the Attorney-General's Department. Late on 19 September, and then on 25 September, the Department of Immigration and Multicultural Affairs appeared before the committee. That department, which appeared two days later than the Attorney-General's Department, and in another case a week later than the Attorney-General's Department, has been able to supply the committee with responses to a large number of the questions that were placed on notice. But the Attorney-General's Department has not been able to do so. I suggest—I actually accuse—that this is a deliberate tactic by the government and the Attorney-General to keep information from the committee.

Very early in the piece—on Tuesday, 17 September—we asked what modelling had been done in the High Court of Australia and in the other courts and tribunals in relation to the impact of the fees on the public and, indeed, on the work of the court. We asked for that. The secretary to the department took the question on notice. You cannot say that that is a highly detailed question that the government may take time to answer. That is something that a couple of officers of the department would probably have sat around with over a cup of coffee, maybe even with a cigarette in the barbecue area, and worked out some details and then provided it to the committee. It was a very simple request, but it has not been delivered. It is not one of the most important questions that the committee put on notice to the Attorney-General's Department. I am not suggesting for one minute that it is.

The debate that is before the chamber is now occurring three weeks after the adjournment of the committee—actually, it is more than that because Senator Bolkus first started debate on it this day three weeks ago, but it was on the Notice Paper long before that.

The information that we requested would be helpful to us in arguing this matter before the committee. The matter that we are arguing is not an inconsequential matter, despite what Senator Abetz said in his contribution to the debate last week. The matter in front of us has prompted the Law Council of Australia, one of the premier legal bodies in this country, to write to members and senators on at least three separate occasions in the lead in to the deliberations of the Senate estimates committee which took place last month. One of the letters that was addressed to the committee was incorporated into Hansard on Tuesday, 17 September. Page SLC48 of the Hansard states:

Some idea of the impact of the fee increases in the Federal court may be ascertained by taking a typical case, say one in which a small company complains that a competitor is engaging in misleading and deceptive conduct. Under the old Schedule, the originating application would attract a filing fee of $368. That will now be $1,600, an increase of 335%. In the interlocutory stages, if (as is often the case) it is necessary to file a notice of motion, under the old Schedule the filing fee would be $62. That is now to be $246, an increase of 297%. When that notice of motion comes on for hearing, that would occur, under the old Schedule, without further fee. Under the new Schedule, that small company would need to pay $400 to the court for each half day (or part thereof) occupied. If this hypothetical case could not be settled, and had to be set down for hearing, under the old Schedule the applicant would then pay a "hearing fee" of $616. Under the new Schedule, that small company would now pay the sum of $2,000 for the privilege of having the matter set down for hearing, and this sum is no longer described as a "hearing fee". The new "hearing fee" is now a fee which accrues at the rate of $1100 per day . . .

Truly, these proposed fee increases are dramatic and, indeed, draconian. To the best of my knowledge, I have never stood up in this place and been a defender of the Law Council of Australia. I have actually very rarely been a defender of the legal profession at all; I have usually left that task to my colleague Senator Cooney and some of the members on the other side of the chamber. Usually when I have had to speak about the legal profession it has been in a critical sense.

But on this occasion, I am quite happy to be able to stand here and defend the proposition that they are putting forward. I have no doubt that there are some corporations in this county who can afford the new fees and, indeed, will probably thrive on the fact that the new fees are there. The new fees that are being introduced and proposed by the government, and, indeed, which are actually in action and have been since 1 September, will keep many companies and many individuals out of the court system. That in itself may be a good point.

But I ask you when considering that to consider the cost of justice. Should justice be available only to those who can afford to pay for it? If that is the case, we have turned over the whole of the judicial system that we have in this country. I do not think that we should do that, and we certainly should not do that without a dramatic debate on it.

I know that the concept of user pays is something that pervaded the thoughts of many in the previous government and previous governments. It probably will pervade the thoughts of those in this government. It is worth while to read into the record what the Chief Justice of the High Court of Australia, Justice Brennan—the most senior judge in this country—had to say in a recent speech on the matter of user pays. He said:

With respect, that profoundly mistakes the constitutional function of the judicial power of the State which, as I have said, is to apply the rule of law in resolving disputes and thereby preserving the peace, order and good government of society.

The chief justice does not agree that the judicial system should be restricted only to those who can afford to enter into it. In the same speech, he said:

The courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigant—

I want to come back to the issue of the legally aided litigant shortly—

Governments are anxious to restrict expenditure on legal aid and the administration of justice. It is not an overstatement to say that the system of administering justice is in crisis. Ordinary people cannot afford to enforce their rights or litigate to protect their immunities. To that extent, the cohesive force of the law is undermined.

They are very salutary words that ought to be digested by all in this chamber and, indeed, all who have anything to do with the legal and justice system in this country.

I am not standing here as a member of the opposition who is opposed to fees being imposed on those who want to participate or have the need to participate and be involved in the judicial system. Indeed not. It would be hypocritical for me to do so. I know that when I sat on the other side of this chamber as a backbench member of government, I in turn supported the increases in fees that were levied on people and corporations who wanted to participate in the judicial system. I never, from that side of the chamber, participated in or supported actions that go to the extent that these actions go to. I doubt very much that I would have supported them. I do believe that they are truly draconian and should be opposed and dismissed.

As I said, we have increased fees in the past. We have from time to time imposed fees where no previous fees were in existence. But, if you take the words of the minister in her contribution to this debate yesterday and the words of Senator Abetz in his contribution, you will find that the levels of cost recovery of the administration of justice were not punitive under the previous regime. They certainly were not punitive in 1992 when the then Senator Sid Spindler proposed a disallowance of the fees—that proposal was supported by the now government.

It is interesting that Senator Abetz in his contribution yesterday saw fit to use a quote from the then minister for justice, Senator Tate, and to read it into the record. I would like to do the same thing and then prove a different point from the one Senator Abetz was trying to prove last evening. In March 1992, in a Senate debate on the matter of the disallowance of judicial fees, Senator Tate said:

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.

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 were otherwise borne by the ordinary taxpayers of Australia.

Coalition senators, together with the Democrats, opposed that statement at that point in time. They opposed the proposal to increase fees when it was before the Senate chamber. The figure quoted is $500. With the fees that are being considered now, we are running into the tens of thousands of dollars. I ask coalition senators: if it was quite right and proper in 1992 to oppose the introduction of an increase in fees to the level of $500, is it not right and proper at this time to oppose the introduction of and increases in fees to many tens of thousands of dollars? I say it is. I am glad to have the opportunity to stand here and make that point.

Just while I am on Senator Abetz's contribution of last evening, I would make another point; it is the one which I said I would return to. In his opening contribution, he referred to Senator Stott Despoja's contribution to the debate and then raised the matter of applications relating to domestic violence. I do not disagree with where Senator Abetz said that domestic violence applications are filed. They are filed within state jurisdictions, generally speaking, around the country. Part of the reason for that being the case is that there is then the ability for people who are making applications for orders relating to domestic violence to be legally aided.

Under the proposals of this government, the legal aid system that we enjoy in this country now will be emasculated. I would suggest that, if the attorney's proposals which restrict the use of Commonwealth funds for legal aid to Commonwealth matters only go ahead on 1 July next year, what we are witnessing now with the applications relating to domestic violence orders being filed mainly in state jurisdictions will indeed change; that people will want to file those applications in the Family Court of Australia—which, indeed, is part of the Federal Court of Australia. If that is the case, perhaps there is the need in that circumstance for them to be able to get legal aid to proceed with the filing of their applications.

I was pleased that Minister Vanstone, coming in here representing the Attorney-General, did give some relief, as she promised she would three weeks ago, in her contribution last evening—some relief. I do not know what worth can be gained from that relief. However, going to the detail of what she said, in the first instance she talked about the Family Court and said—and I will use her words:

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.

I now go back to the attorney's statement that he released at the delivery of the budget and bring this relief that the minister suggested last evening into some form of perspective. On 30 August this year the fee was actually $368 dollars, it was proposed in the budget to increase it to $460, and last evening the Minister representing the Attorney-General announced that it will be increased further—to $500. That is wonderful relief for those people who are participating in the Family Court of Australia! Just over a month ago, to make an application cost $368. That was to be increased to $460. But last evening we were told it is now going to $500. There was an offset on it, and to do the minister justice I will continue on with what she said:

We propose to reduce the fee for ancillary relief from its current level of $250 to $150.

That, again, is welcomed for what it is worth. But it should be pointed out that on 30 August this year, just over a month ago, that actual fee was nil. To make an application for ancillary relief, it did not cost you anything in August of this year—or in July, or preceding 1 September when the new fee increases that were announced in the budget came into effect. So the minister last evening graciously has reduced from $250 the fee that was announced in the budget to $150.

I will continue with Minister Vanstone's statement to the Senate last evening:

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 minister continues—

the government will reduce the one-off hearing fee from $400 to $300 to reduce the impact of that fee.

Again, I welcome that for what it is worth. But it should be pointed out that, in August of this year or prior to 1 September, the fee that applied for the one-off hearing was nil. We have gone from nil to $400 back to $300—nonetheless, it is a step in the right direction.

The minister last evening also announced some other decreases and changes that apply to the Federal Court. Then she stated:

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.

Previously there was no fee. So we accept the magnanimity of the statement of last evening! The minister then continued:

The daily hearing fees will be reduced from $550 and $1,100—

that is $550 for an individual and $1,100 for a corporate entity—

to $400 and $800 respectively.

Again, great magnanimity! The minister, however, failed to point out what the fee was prior to 1 September of this year. There has been a reduction, certainly. But in the appendices attached to the attorney's statement, which I am quoting from now, that fee up to and including 30 August this year was nil. I suppose we do have to be grateful for small mercies—small mercies, indeed! I think the Law Council of Australia, in writing and addressing letters on this matter to senators and members of the Australian parliament, did themselves and, indeed, the public of Australia a great service.

I hope that they are watching this debate with interest because it is of great concern to them—though not of concern to them in the sense that Senator Abetz raised last evening when he related these increases to the fees that lawyers charge. When I engaged in some of my attacks on the legal profession in the past, I did not do it on the basis of the fees that the individuals charged. If they can get them, fine; they can get them and get away with it. Had the legal profession and the Law Council of Australia and those other bodies sought to increase the fees of lawyers by 300 and 400 per cent, I would have stood here and condemned and attacked them—as Senator Cooney said a short while ago, viciously attacked them. I would indeed, and they would be deserving had we done so.

I do not think the Law Council of Australia has ever supported increases of the nature that is suggested and proposed—and indeed that have been implemented—by this government now. I do not think the Law Council of Australia have ever supported fees of that nature. I would hope that they will take account of what Senator Abetz said last evening and, in doing so, address their member, because he did admit in the debate last evening that indeed he is a member.

The final point I want to make is that a great deal of store has been put in what the cost recovery is from state judicial jurisdictions as opposed to what it is from the federal jurisdictions. In the figures that were given, I do not know why 1989 was used. Had we more time in the debate, I think it would be worth while putting further questions—or perhaps I am flagging questions for the estimates committee proceedings in two weeks time—to get the cost recovery figures from each of the years, not just 1989.

The figures that the Minister for Employment, Education, Training and Youth Affairs, Senator Vanstone, last evening quoted—and indeed they were quoted later by Senator Abetz—do not correlate with those figures that were provided to the senators and indeed incorporated in the Hansard at page L&C 49 on 17 September. They do not correlate at all. But we are not in a position to check because the questions that we put on notice have not yet been replied to. That is a matter that will be followed through in the Senate estimates committee. It will be followed through in this chamber as well because not only is that an insult to those members of the committee but also the Attorney's actions are an insult to the Senate.