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31 Oct 2017

Statutes Amendment (Court Fees) Bill

Adjourned debate on second reading.

(Continued from 28 September 2017.)

The Hon. A.L. McLACHLAN (16:48): I rise to speak to the Statutes Amendment (Court Fees) Bill. I speak on behalf of my Liberal colleagues to indicate that the Liberal opposition will be supporting the second reading of the bill. The bill has been introduced following a review of the Civil Court fees, which was conducted by the state’s administration council at the request of the Attorney-General. The Attorney-General indicated that the review recommended that Magistrates Court lodgement fees be charged on a tiered basis.

I note that the member for Bragg in the other place requested a copy of this report from the Attorney-General. His response indicated that the Courts Administration Authority does not wish to publicly release the said report. Therefore, the Liberal opposition is at this time forced to rely in good faith on the assertions of the Attorney-General in providing our support to this piece of legislation. I ask the minister to advise the chamber in the second reading summing-up why the report is not available for members to peruse ahead of or during the debate. Nevertheless, in his second reading speech, the Attorney-General indicated that the report identified:

…several options for restructuring of court fees and to improve the efficiency of civil court matters including, relevantly, to move to a tiered civil claim lodgement in the Magistrates Court that vary depending on the amount claimed.

The bill before the chamber therefore amends the Magistrates Court Act to enable fees to be charged on the value of the amount claimed. The Attorney indicated that the fees will then be fixed by regulation.

We have been advised that tiered civil court fees are used in equivalent courts in all other jurisdictions other than New South Wales and Tasmania. The bill also amends the Supreme Court, District Court and Sheriff’s acts. Whilst we are advised that tiered lodgement fees will be first introduced in the Magistrates Court following the passage of this bill, the amendments to the other acts will enable the introduction of such fees in the higher courts in the future, should the government wish to do so.

I ask the minister whether he can indicate whether the report only discussed the introduction of civil court fees in the Magistrates Court or whether it included discussion regarding the higher courts as well. I ask for a response to this question in the second reading summing-up. I make this inquiry because, should this bill pass, there will be legislative ability to apply tiered fees to the High Court, should the government wish to do so. Without the benefit of the report, it is difficult to ascertain whether the potential introduction of tiered fees in the higher courts was also the subject of scrutiny and discussion by the Courts Administration Authority.

I now turn to the Law Society’s submission, dated 28 June 2016. I note that in a letter of the same date to the Manager of Accounting Services at the Courts Administration Authority, the Law Society raised concerns about the effect the proposal might have on access to justice. I will quote a couple of passages from that submission, as I believe it is important that we reflect on these issues, and I will ask the minister to respond to the concerns the society has raised. I quote:

The society strongly opposes the introduction of tiered fees. The Society understands that fees collected by the CAA remain in general revenue rather than being directed to or resulting in increased expenditure on courts and court based services.

The society went on to add:

…the society is strongly opposed to the proposed introduction of a fee for listing a matter for trial and consider the current trial fees should remain. The suggested fees would be a tax on access to the justice system…

It goes on to say:

To charge a filing fee on entry to the court system effectively only for the introductory process and then to charge a further substantial fee before the courts will perform their primary function is a fundamental obstacle to access to justice.

I note that the society’s position on these issues has not changed since that time, for their recent submission dated 1 September of this year reiterated their objections. In particular, they stated:

…we are opposed to any proportion of fees collected by the CAA forming part of the State’s general revenue and therefore being of the nature of a tax, rather than being directed to or resulting in increased expenditure on courts and court based services.

In relation to tiered fees, the submission stated:

…the amount of the fee is set on the basis of the amount of the unrealised (and potentially never realised) award, encouraging manipulation of claims and increased post-filing amendment of claims. It is not acceptable that there be even a perception that the court/state financially benefits based on the value of a claim rather than the cost of provision of services.

The society is very concerned that the proposed introduction of further fees will have a serious adverse impact upon access to justice in this state. It is fundamental to a civilised society operating under the rule of law that its citizens be able to access its courts.

As I have indicated, the Liberal Party supports the second reading.

Debate adjourned on motion of Hon. J.M. Gazzola.

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