Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

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, Graeme 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 judgment 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 judgment'. 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, despatching 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.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on this disallowance motion of the government's court fees, which I have co-sponsored with Senator Collins and the Labor Party today. As everyone in this place would be aware, on 24 June this year I moved a successful disallowance motion, as the legal affairs spokesperson, on behalf of the Australian Greens that should have put an end to this government's blatant attempt to raise revenue at the expense of Family Court users, including women and families at risk of violence. It should have knocked out once and for all this government's greedy and cruel divorce tax—their way of slugging people going through family breakdown a further $350 to obtain a divorce. But, sadly, in an almost unbelievable act of—and I will not use swear words, but people might know what I mean—legal trickery and cynical politics, this government and the Attorney-General tabled almost exactly the same regulation that was voted down by the Senate, which would increase the same range of Family Court fees to the same extent but with the addition of a further $5 in some cases. So, at best, this is a flagrant disregard of the decision of this Senate and, at worst, it is an illegitimate attempt to reintroduce a regulation that is the same in substance as that which was disallowed on 24 June 2015.

The Labor Party is currently testing the legality of the government's actions in the Federal Court. I predict that the court will find that the regulation that was reintroduced by the government will be substantially similar to the regulation that was previously disallowed and I predict that it will be struck down by the court. In the meantime, however, this move by the government has created confusion, chaos, and countless families in breakdown have been paying hundreds of dollars more at registries across Australia to access legal services that they and their children desperately need. What a way to do business! What a way for the Attorney-General, the principal legal officer in this country, to act!

Family court registries are suffering under the serious and confusing uncertainty this government's legal trickery has brought about. In fact, the day that the regulation was introduced, there was chaos in the registries as people turned up expecting to be paying one thing because of being aware of the decision by the Senate to disallow the previous regulation and were then informed by hapless court staff that the cost had indeed gone up again. So the fees went up, went back down again, went back up and now, if this disallowance is passed, they will go down again. How is this fair? How is this clear? How is this an appropriate way to run the country? What does this achieve? How long will this go on? Surely now is the time to act decisively on this issue. It is time to offer clarity to families using the Family Court who are already often in a state of distress because of the circumstances that are bringing them to the necessity to rely on the court. How will it bring clarity to families? It is important that they understand that the fees will not go up by 40 per cent and bounce around again while the government works out another way to sidestep the law and the clear will of the Senate.

But perhaps I should remind everyone in this place why the issue at the base of this, the cost of access to justice, is so important. We know that the cost of legal proceedings, the cost of access to the law, is the most common barrier for people in Australia now seeking legal help. Court fees are already too high. When it comes to accessing justice, which is a fundamental aspect of having a country where the rule of law is respected and that people can get equal access irrespective of the size of their wallet and only based on the merit of their claim—the people being failed by this government's policies and funding decisions are not just those who are suspected of or charged with some kind of wrongdoing or an offence. These people who are now having trouble accessing basic justice include the most vulnerable and innocent among us, such as children who are experiencing poverty and family violence or women experiencing domestic or sexual violence, for instance, in remote communities. They also include the most ordinary people among us—families who want to clarify guardianship arrangements for their elderly parents, divorcing couples wanting to finalise property settlements or arrangements for the care of their children, or neighbourhoods who are seeking to protect their local environment from harm or degradation.

Over and over again under this government we have seen cruel and counterproductive funding cuts that slice away at the fabric of access to justice in Australia, totalling well over $40 million since the election of this government. We have seen community legal centres and legal assistance services forced to turn away more and more people who are in need. Courts and tribunals have felt the squeeze of so-called efficiency strategies. It beggars my understand what is efficient about forcing people into a situation where they have to be self-represented or are not able to access justice at all with the flow-on costs that come from unmet legal need. There is nothing efficient about that at all. We are seeing mandatory sentencing policies and other legislative changes designed to remove lawyers and limit judicial discretion. This is the form that this particular government has. This is the form that this Attorney-General has. The result is, at best, a cruel and confusing system that fails to take into account individual experiences and leaves people in Australia without the help they need to understand what the law is and how the system works and, at worst, we are left with a system that leads to unfair outcomes, particularly for those who are not privileged enough to obtain private legal advice—leaving young people institutionalised, families torn apart and children at risk.

Let us cast our minds back.    In 2013, the Senate Legal and Constitutional Affairs References Committee, which I chaired at the time, commenced an inquiry, initiated by the Australian Greens, into the impact under the previous Labor government of higher Federal Court fees on access to justice. There was a great deal of interest in the inquiry from the legal community and a large number of submissions were received. The overwhelming consensus for participants in the inquiry was that the fee increases, at that time, were largely unreasonable and inhibited access to justice.

Indeed, it is very interesting to note that the then shadow Attorney-General, Senator George Brandis, went out and decried the Labor government court fee increases and, in fact, was talking about the then Labor government's disguised divorce tax. So he was very, very loud and vociferous at the time about using the courts as a revenue-raising measure. However, interestingly enough too, as a result of the inquiry, the submissions and the evidence before the committee, the Australian Greens made a primary recommendation in our report from that inquiry that the 2013 fee increases should be wound back to the level which prevailed prior to 1 January 2013. Despite the shadow Attorney-General George Brandis's grandstanding at the time, in fact, the opposition at the time would not sign up to those recommendations. Do not look at what they do, look at what they say—that is what they would have us believe; in fact, look at what they do.

Despite widespread acknowledgement that rising court fees were hindering access to justice, not one of the recommendations from the 2013 Legal and Constitutional Affairs References Committee inquiry into court fees have been implemented. This includes a recommendation that relevant stakeholders from the courts and the legal profession should be consulted before any future changes to Federal Court fees.

In the 2013 inquiry, we also discovered that some Federal Court filing fees have tripled over recent years. This is nothing but a revenue-raising measure and an unfair tax on people who are unlucky enough to have to use the court system. Yet, here we are with this government now proposing further increases to court fees—up to 40 per cent in some cases.

The Australian Greens were particularly concerned about the $350 increase to divorce applications and the potential impact of that on women trying to leave domestic violence and family violence situations. People will understand there is a lot of discussion about family violence and there is a lot of rhetoric from the current government about the need to act. When we look at the actual practical implications of an increase like this, which will impede some women who need the closure of a divorce to end a violent relationship, when it will impede their ability to get that, you have to again say, 'Listen not to what they say, look at what they do.'

With the government fee increases, we have seen the cost of divorce applications rise from $845 to $1,195 in the first tranche of regulations and, of course, that will be even slightly higher under this second regulation that the government has now tabled. This will cause excessive and unfair delays to victims of domestic violence who will be seeking a divorce. In fact, the 2013 Senate inquiry into court fee increases found that higher court costs were indeed dissuading women who were trying to leave abusive marriages. There is evidence in that committee report for anyone who is interested in looking at it.

At a time when family violence is clearly on the national agenda, and rightly so, we must be making every effort, as a community and as a parliament, to protect victims of domestic violence and ensure that they have access to legal advice and to the courts. We have to put an end to the scourge of family violence in this country. Increasing divorce applications by $350 or more will make it even more difficult for women in abusive marriages to leave.

The changes to these Family Court fees, particularly the divorce application fee, are cynical when you realise there is no option for divorcing parties to avoid the courts. It is not as if they can be encouraged to somehow settle their legal differences or their legal claim in any other way. The only way to get a divorce in Australia is to go to the Family Court, make an application and pay for it. So even when they reach an agreement, even when there are consent orders, there is a fee imposed, and there is an increased fee now under these government regulations.

The Australian Greens say that it is completely inappropriate for the government to use family breakdown as a cash cow. While the government has tried to justify these huge fee hikes by suggesting that the money will go to improving court facilities, looking at the truth of the situation only a minor proportion of the $87 million that was predicted to be raised will actually be re-invested in the courts. Only $30 million will be spent on improvements to holding cells and to the safety of child dispute conference areas.

Many legal stakeholders have opposed the fee increases on the grounds that they will significantly impact on low- to middle-income Australians and small- to medium-sized businesses that do not qualify for legal aid or any fee exemption or waiver. They also say these increases are unreasonably large and not justified by any rational policy objective, because really it is just about raising revenue. They are not supported by evidence that changes to fees will advance the government's policy objectives. Legal stakeholders say that these fees will impose an unreasonable barrier to accessing justice by making access to the Federal Court contingent upon the capacity of litigants of various means to meet the substantial additional cost of litigating. The impact on litigants will be inequitable and they will establish a regime which disproportionately impacts on those who have more limited financial means. So we will move, increasingly, to an Australia where justice is as good as you can buy, as good as you can afford, irrespective of the merits of your case.

On that basis, I want to conclude by saying that I urge everyone in this place to support this disallowance and to remain resolute in their commitment not to let this arrogant and unprincipled government take us and the users of the Family Court for granted.

Glenn Lazarus (Queensland, Independent) Share this | Link to this | Hansard source

I rise to contribute to the discussion on this disallowance motion. I am supporting the disallowance of the Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015 for a number of reasons. Firstly, the Abbott government has no mandate to increase the cost of Family Court fees. Unless I am mistaken, the Abbott government made no mention of these proposed increases in their 2013 suite of federal election campaign policies. If they were there, while Bronnie was flying around in her taxpayer funded helicopter, perhaps a set of campaign policy manuals relating to Family Court fees was misplaced during flight. Or perhaps the Family Law Court fee increase policy was also included in the GP co-payment and higher education deregulation folder, and the whole lot went missing during the flight. Regardless, the Family Law Court fee increases were never presented to the people of Australia for consideration as part of the election and so, therefore, the Abbott government has no mandate to increase these fees.

Secondly, the Abbott government has no parliamentary support to increase the Family Law Court fees. In fact, the Abbott government is effectively going against the wishes of the Australian parliament and the people of Australia by increasing the court fees through regulation—again. As we know, the government has already tried to increase Family Law Court fees and had this regulation disallowed by the Senate. Now, despite this, the Abbott government has ignored the will of the Senate by introducing new regulations which are effectively a complete copy of the original regulations. Perhaps the government is going for a trifecta; who knows? But again it is up to the crossbench, the Labor Party and the Greens to keep the government to account. Through our disallowance motion today we will be able to ensure the government does not implement another nasty budget measure which will only hurt disadvantaged and vulnerable Australians.

Thirdly, and finally, the Abbott government has no right nor need to increase Family Law Court fees. If anything, our court system needs support—not fee increase hikes. The court system should be a place where the people can resolve issues in a fair, accessible and transparent manner. Increasing Family Law Court fees will only hinder access to fair and reasonable issue resolution outcomes for Australians.

It is for all of these reasons that I am co-sponsoring this motion. I call on all of my Senate colleagues to assist me in rolling back these Family Law Court fee increases.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I rise to oppose the disallowance motion relating to the Family Law (Fees) Amendment (2015 Measures No. 1). In June the Senate voted to disallow family law fee changes which were intended to commence on 1 July. In doing so, those senators who supported the disallowance acted with gross irresponsibility, and if they do so again today they will be compounding their irresponsibility. The Family Court and the Federal Circuit Court are projecting substantial losses over the forward estimates. The package of measures is necessary to ensure the courts are sustainable by the fourth year of the forward estimates.

The government's budget measure was part of a package to ensure that the courts are in a strong financial position to carry out their fundamental role as the judicial arm of the Commonwealth while ensuring the efficient and effective delivery of their services. The government has considered in their totality all the issues related to court funding. The budget includes measures critical to ensuring that the courts are placed on a sustainable funding footing and meet the streamlining savings election commitment, Senator Lazarus. This includes injecting into the courts an additional $22.5 million over four years to enhance their capacity to provide services in areas such as family law, with $16.6 million to be injected into the Family Court and Federal Circuit Court and $5.9 million into the Federal Court. Injection into each court will remain as per the budget papers for 2015-16, but in the following years it will be adjusted as necessary when the courts become a single administrative body from 1 July 2016.

It also includes $30 million in funding for critical maintenance works for court buildings. This is very important. It also includes merging the back office functions of the Federal Court, the Family Court and the Federal Circuit Court to ensure the efficient and effective delivery of shared services. Implementation will commence early in 2015-16 to facilitate formal commencement of the merged entity on 1 July 2016, and it will also include changes to court fees to commence in July 2014.

It is the last of these that Labor, the Greens and the crossbench are seeking to disallow. Of course, without the fee changes there will be almost nothing left for injection back into the courts. This action threatens to undermine the revenue base that is critical to putting the federal courts on a sustainable funding footing. The hypocrisy on the Labor side is amazing. When last in government, those opposite used substantial court fee increases to generate funds for the civil justice system, but with a much lower proportion—

Honourable Senators:

Honourable senators interjecting—

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

Order, senators.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

But with a much lower portion of the additional revenue being returned to the courts. Can I repeat that, Senator Collins, just in case you did not quite hear it the first time. That is: when you were last in government, you used substantial court fee increases—

Senator Jacinta Collins interjecting—

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

Senator Collins, the senator has the right to be heard in silence.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I did sit there and listen to you in silence, Senator Collins, much against my better judgement. But perhaps I can repeat what I said for you. It is pretty simple: when you were in government you used substantial court fee increases to generate funds for the civil justice system, but with a much lower portion of the additional revenue being returned to the courts. In the 2012-13 budget you increased Federal Court fees from 1 January 2013 to raise a total of $102.4 million over four years, but only $30 million of that additional funding was provided to the federal courts. In the 2012-13 budget you changed court fees from 1 January 2013 to provide additional funding of $30 million over four years to the federal courts. The changes raised a total of $102.4 million over the forward estimates, of which approximately $4.2 million was also allocated to the federal courts for implementation and administration of the fees. Overall, fees in the Federal Court were raised by approximately 29 per cent, on average. As a result, public authorities such as the Australian Taxation Office and publicly-listed companies shifted matters from the Federal Court to the state courts. Consequently, in the 2013 calendar year the Federal Court collected $24.6 million in revenue but in the 2014 calendar year it collected $12.8 million in revenue. Its revenue decreased by 48 per cent.

This is the legacy that those opposite left us. They raised fees, including almost trebling the concessional fees, and they did nothing towards returning the courts to sustainability. In a typical Labor-Greens comedy of errors, the previous government hiked the fees of the Federal Court so much that its business was halved and its fee revenue smashed. The additional fee revenue from the government's family law fee changes is a critical element of the package of court reform measures announced by the government in the 2015-16 budget, including the additional $22.5 million to be injected into the federal courts to enhance their capacity to provide services in key areas such as family law.

Other measures, including merging the court's back office functions, while important, generate insufficient savings to address the court's deficits and to meet the election commitment to streamline savings without accompanying fee increases. Given the structural deficits currently facing the family courts, the only alternatives would be to cut front-line court services, close registries and not replace judges—which would severely undermine access to justice for the Australian community. Dishonestly, the Labor Party and the Greens have characterised these fee increases as impacting on the vulnerable—who, they say, will not be able to afford the new fees. However, fee exemptions, deferrals and waivers will still apply to vulnerable litigants as before. This includes litigants who have been granted legal aid, who are holders of concessional cards, who would be subject to financial hardship by paying a fee, or who have an urgent need to file a document. Can I stress that: the government has left untouched the concessional fee arrangements. I repeat—especially for Senator Lazarus, Senator Wright and Senator Collins: the government has left untouched the concessional fee arrangements. I say that for a third time, in case you did not get it: this means that those facing financial hardship or other difficult circumstances should not be affected by these changes, and those opposite should not be peddling misrepresentations in relation to this—

Opposition senators interjecting—

You should not be peddling misrepresentations. It is appropriate to seek from court users a greater contribution towards the cost of running the courts, consistent with recommendations of the 2014 Productivity Commission report into access to justice arrangements. However, and I repeat: reduced fees for divorce applications will remain unchanged for vulnerable applicants in both the Family Court and the federal circuit court. Further, registrars have substantial discretion in granting reduced fees and deferred payment arrangements, even where litigants do not qualify for the concessional fees. It is only the actions of this Senate, in voting to disallow the fee regulations, that put these arrangements at risk.

Senator Lazarus interjecting—

Senator Lazarus, what part of that very simple comment did you not understand? Not only have we left untouched the concessional fee arrangements; registrars also have substantial discretion in granting reduced fees and deferred payment arrangements, even where you have litigants who do not qualify for the concessional fees. Not only that but, if the additional funding is not available, the government will have no choice but to consider the other, much less palatable methods of addressing the structural deficit. The Senate, in voting for disallowance, is in effect asking the government to consider registry closures and service reductions. This is a matter for those opposite but no-one will be left under any illusion about whose responsibility it will be.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the disallowance motion moved by Senator Collins be agreed to.