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Disallowance motion, Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020, 23 February 2021

I have to say, I am disappointed with the disallowance motion that has been brought forward by Senator Griff today, principally because Senator Griff has not explained this particular regulation in full. I want to refer senators to the fact that the proposed regulation that Senator Griff is seeking to disallow allows the registrar or an authorised officer to determine that an individual may pay the reduced fee as specified. Senator Griff did reference that, but he did not reference—and nor did Senator Watt—the fact that it is also open to applicants to seek an exemption from paying the fee—that is, a full waiver of the fee. I’ll read out the relevant provision of the regulation:

… if, in the opinion of the Registrar or the authorised officer at that time, the payment of the reduced fee would also cause financial hardship to the individual—the individual is exempt from paying both the full fee and the reduced fee.

Opposition senators interjecting—

I can hear the heckling from the other side of the chamber, but it is a very serious omission. It is a very important point to make, because it goes to the very point of access to justice. I’ll also reference another provision of the regulation:

In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day-to-day living expenses, liabilities and assets.

It is open to any applicant to make an application for a full waiver of the fee.

Senator Watt made some outrageous and abhorrent suggestions in relation to breaches of the rule of law and human rights; what absolute rubbish from Senator Watt. I want to refer him and other senators to the finding of the Parliamentary Joint Committee on Human Rights in relation to these regulations and the bipartisan position that was taken in assessing the human rights implications of this regulation. I want to read onto the record from Human rights scrutiny report: report 1 of 2021 for all senators’ benefit. The committee, including Labor members of the committee, noted:

… the Attorney-General’s advice that the funds generated by the increased application fee for migration matters will be used to offset the cost of increasing the capacity of the Federal Circuit Court in both migration and family law matters, including enabling the court to finalise an estimated additional 1,000 migration matters each year. In addition, the committee notes that court personnel will have the discretion to consider an applicant’s full unique personal circumstances (including their liquid assets, income, and any other relevant factors) in determining whether they will be in financial hardship if required to pay the application fee. The committee also notes that some classes of applicants (such as minors and people in detention) are exempt from payment of the application fee based on their status. The committee considers, therefore, that there are sufficient safeguards such that these amendments may not result in a limitation on the right of access to justice in practice.

I chair the Parliamentary Joint Committee on Human Rights and that was the bipartisan position of all members of that committee. As I say, I am very disappointed that Senators Griff and Watt have not referenced the very important point that I’ve made: a full exemption is available and it’s determined independently by the registrar or an authorised officer, who would be able to look at all of the circumstances of that applicant’s financial situation. That’s a really important point when we are talking about access to justice.

The other really important point to make, and why I’m asking that senators do not seek to disallow this regulation, is that all of the revenue from this measure is being reinvested in the court. The revenue is supporting $35.7 million over the forward estimates in additional funding for the Federal Circuit Court to assist with the timely resolution of both migration and family law matters. This additional resourcing will provide the Federal Circuit Court with three additional general federal law judges, a very significant investment, accompanied by two additional registrars and other support staff to support the migration workload of the court. It will also support one additional family law judge accompanied by five additional registrars and other support staff to support the family law workload of the court. It will also help to increase base funding to support the court’s current and ongoing operations. The number of migration matters filed in the Federal Circuit Court has grown substantially, from 3,544 in 2014-15 to some 6½ thousand in 2019-20, so these resources are incredibly important in terms of addressing that workload. While the Federal Circuit Court continues to increase the number of migration matters that it finalises each year, it has been unable to finalise as many matters as there are filings, so these resources are desperately needed and incredibly important.

The increase to the Federal Circuit Court migration fee will bring the Federal Circuit Court into line with the Federal Circuit Court’s placement in Australia’s court hierarchy, so I think the criticism that Senator Watt made in that respect is really quite pathetic. The fee for migration applicants to the AAT is 2½ times higher than the Federal Circuit Court fee for migration litigants. The Federal Circuit Court fee is lower, Senator Watt, than the AAT’s fee of $1,826, so it is a proportionate and reasonable increase.

As I say, bearing in mind that those who are the most disadvantaged, who have significant financial hardship, are able to make an application for this fee to be completely waived. Of the 25,809 migration lodgements in the migration and refugee division of the AAT, there were some 930 applications for a fee reduction, and 490 fee reductions were in fact granted. It is important to note that in 2014, the Productivity Commission also noted that court fees in Australia are relatively low and recommended increasing the level of cost recovery in most courts.

It’s important to recognise that the government has put in place measures to ensure that this change will not prevent access to justice for migration litigants. I also think it’s very important to note—and I do particularly take issue with Senator Watt’s characterisation of the Federal Circuit and Family Court of Australia bill which was passed by the Senate last week—this is incredibly important legislation to provide greater justice, to provide one point of entry, to provide more resources to the unified court and to end the days when we have two courts dealing with Family Court matters. I strongly say to senators today: please do not support this disallowance motion for the reasons that I’ve put forward and for the reasons that have been put forward by Senator Duniam on behalf of the government.

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