Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Hansard source

The Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020 would increase the application fee for migration litigants in the Federal Circuit Court from $690 to $3,330. Beyond a very vague explanatory statement issued by the Attorney-General, the dramatic increase to the application fee for migration litigants has not been explained or justified. In the Attorney-General's statement, the increase is justified in the following terms:

The amended fees only apply to migration litigants, and bring the Federal Circuit Court application fees in line with the Federal Circuit Court's placement in Australia's court hierarchy, relative to the application fees for the Administrative Appeals Tribunal and the application fees for the Federal Court of Australia.

The Regulations specify the Federal Circuit Court application fee for migration litigants is increased from $690 to $3,330, bringing the Federal Circuit Court application fees in line with the Federal Circuit Court's placement in Australia's court hierarchy.

The comparison is then made by the Attorney-General to the application fees for the AAT, which are currently $1,826, and for the Federal Court of Australia, which are currently $4,840. This statement from the Attorney-General is a nonsense. For starters, it suggests the Administrative Appeals Tribunal is a court and so forms part of Australia's court hierarchy. The Attorney-General, the first law officer of the Commonwealth, appears to think that the Administrative Appeals Tribunal is a court. The clue is in the title, Attorney-General. It's called the Administrative Appeals Tribunal, not the Administrative Appeals Court. The same Attorney-General who thinks he knows better than the entire family law sector when it comes to restructuring the Family Court and the Federal Circuit Court apparently doesn't even know the difference between a law court and a merits review tribunal. Or maybe he does know the difference, and his explanatory statement in relation to these regulations cannot be attributed to ignorance but can instead be attributed to malevolence, because the upshot of these regulations is that it will cost some of the most vulnerable people in Australia more than twice as much to make an application to the Federal Circuit Court as it costs companies like Amazon, Microsoft or Facebook. That's because this fee increase will apply only to migration litigants.

So who are these migration litigants? In 2019-20 there were 6,555 migration matters filed in the Federal Circuit Court. Forty-nine per cent of those matters related to judicial review of protection visa decisions. As the Federal Circuit Court notes in its 2019-20 annual report:

A protection visa is the means by which Australia recognises and protects foreign nationals in Australia claiming to fear certain kinds of harm in their countries of origin.

When a foreign national who is seeking Australia's protection has his or her visa application refused, that person will often seek review in the Administrative Appeals Tribunal. That's the merits review tribunal that the Liberals, and the current Attorney-General in particular, have stacked with over 70 former Liberal Party politicians, failed Liberal candidates, Liberal donors and former Liberal staffers. The application fee for the Migration and Refugee Division of the AAT is $1,826, so you have to pay a lot of money, as an asylum seeker, to have your matter heard by a mate of the minister who made the decision you're complaining about. If a member of the AAT, including any one of those 70 former Liberal party politicians, failed Liberal candidates, Liberal donors and former Liberal staffers, decides to uphold the government's decision to refuse an application for a protection visa, the affected individual can then apply to the Federal Circuit Court to review the legality of the tribunal's decision—or at least the individual can theoretically apply, because how many people who are asylum seekers and are seeking Australia's protection will be able to afford the application fee if these regulations are not disallowed and the fee goes up by almost 400 per cent, to $3,330?

These regulations are an attack on access to justice. These regulations are designed to make it harder for people to challenge the legality of decisions made by ministers so that it is easier for ministers to make unlawful decisions with impunity. We all have an interest in ensuring that ministers and departments are acting within the law, and the only way we can ensure that ministers and departments are acting within the law is to ensure that, both in theory and in practice, they are subject to the law. These regulations are taking us on a very dangerous path towards a user-pays justice system, where the only people who have access to justice are those who have the money to pay for it. That certainly seems to be the Morrison government's view of the justice system. When the Assistant Minister to the Attorney-General stood up in this place and defended these fee increases last week, she said:

… there is a fiscal responsibility in the way that we operate that court—

the Federal Circuit Court—

and that means that the fees associated with, for instance, filings for migration cases will be applied to cover costs associated with dealing with migration cases, such as the costs associated with those judges.

What the Assistant Minister to the Attorney-General is describing there is a user-pays justice system, and her comments, and the Morrison government's attitude to the legal system, should concern all Australians. While courts do charge fees, the Commonwealth has traditionally funded the Federal Circuit Court and Family Court out of consolidated revenue, with a view to enabling individuals, regardless of their financial circumstances, to access justice and vindicate their rights. That is as it should be, because courts are a public good.

In relation to these regulations, the Law Council said:

The rule of law and human rights of all people are core tenet of our modern democracy and having access to justice, is an important part of protecting those rights.

…   …   …

Justice is not a commodity and our justice system should not be reduced to a user pays model

One fundamentally important and publically beneficial role that courts pay is upholding the rule of law and ensuring that governments act within the rule of law. To take a recent example: vulnerable Australians who suffered under the robodebt debacle know a bit about the role courts can play in holding a particularly reckless and especially arrogant government to account. It was the Federal Court that held that the robodebt scheme, which was designed and boasted about by the current Prime Minister and Attorney-General, was illegal. Let us never forget that, under that illegal scheme, this callous and malicious government demanded tens of thousands of Australians pay debts they didn't owe. When people didn't or couldn't, this government called in the debt collectors. That scheme would still be in full swing today, if it were not for the Federal Court and if it were not for the fact that one of the individuals who was targeted by the government under the Prime Minister's—