Tuesday, 23 February 2021
Regulations and Determinations
Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020; Disallowance
That the Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020, made under the Federal Circuit Court of Australia Act 1999 and Federal Court of Australia Act 1976, be disallowed [F2020L01416].
Last day to resolve the motion or the instrument will be deemed to have been disallowed.
This disallowance is to right a wrong where, yet again, this government is doing whatever it takes to make it hard for refugees and migrants. How else can this be explained when this regulation imposes a five-fold increase in Federal Circuit Court fees for migration litigants, taking the fee from $690 to $3,330? If this regulation stands, this is what migration litigants will have to pay in order to challenge a decision made by the minister for immigration, the Immigration Assessment Authority and the Administrative Appeals Tribunal. That cost will increase this July and every July thereafter. Even those who have demonstrated severe financial difficulty will still be required to pay half the new fee, or $1,665. For a refugee on a bridging visa or a migrant in Australia who may well be earning the minimum wage, assuming they even have work rights, the new fee is the equivalent of over a month's pay. This fee hike doesn't just affect refugees and protection visa applicants. About half of the court's migration caseload deals with student visas and skilled work visa refusals and cancellations as well as applications relating to partner visas, business visa applications, and visitor and other short-stay visas.
The government argues that the Federal Circuit Court's migration case load has almost doubled in recent years and higher fees will enable more investment in judges and other resources. Let's just work through that rationale. The government says that fees are necessary to provide the courts with additional resourcing. This only makes sense if you think that a court should be operating on a cost recovery basis. Cost recovery is entirely appropriate for some areas of policy, but justice is not one of them. Justice is a public good. It is also worth recognising that family law cases, not migration cases, make up the majority of the Federal Circuit Court's case load. In fact, there were 13 times the number of family law applications in the Federal Circuit Court last financial year than migration applications. It is worth noting that a similar attempt to increase fees for family law litigants was disallowed in 2015. This is no different. If the courts are overworked, and I absolutely believe they are, the solution is not to increase application fees but for the government to provide adequate resourcing.
The next government justification is that the fee hike will simply bring these fees into line with other courts. The Law Council of Australia and others have shown this claim to be totally false. The Administrative Appeals Tribunal charges no fees for some cases and less than $1,000 for others, certainly not $3,330. It charges no application fees for a number of immigration matters, including applications to review protection visa decisions. So why should the government take a different stance for applications to the FCC? There is no justification for the Federal Circuit Court charging such distorted fees for migration cases. My motion will disallow these regulations because they are unnecessary and absolutely unfair.
In December, the Senate agreed to an order for the production of documents seeking the rationale for the fee hike. These OPD documents showed a little more of the real story. They showed that the regulations were rushed, with the AAT and the Federal Court provided a copy of the draft amendments barely a week before the budget, and they were only given one day to respond—one day. The documents also portray the ideology and bias behind the funding increase.
One of the documents focuses exclusively on protection visas and the need to reel in the number of review applications. Protection visas have been targeted, even though they represent under half of the migration cases dealt with by the FCC. When the government talks about better resourcing and making case loads more manageable, what it is really hoping is that the fee hike will push migration law applicants away, out of the system. The real improvement in case loads will come from refugees and temporary migrants not needing to pursue their cases. People should be free to lodge an application when they believe they have a case. The cost of making the initial application should not be the deciding factor.
We know the fee hike is expected to raise just $14 million to offset the $35.7 million the government set aside in the budget for additional family law judges and registrars. But it appears from the documents that the government wants these fees to also help cover existing registrars that are funded through appropriations for a program it has not even legislated, which is the controversial parenting management hearings measure announced in the 2017-18 budget, which will now no longer proceed. Having decided to scrap the unpopular measure, the government has decided to squeeze migration litigants for the extra cash. It's a cheap game of smoke and mirrors, and vulnerable litigants are the ones who will pay the price.
Our legal system is based on the premise that every person has the right to justice. Justice should be accessible for all. It should be affordable for all. Justice should be about fair and equal treatment for all. This regulation undermines the very principles of justice and well and truly deserves to be thrown out. Migrants should not be treated as cash cows and a political weapon. If you share my concerns, I ask that you support this disallowance and send a clear signal to government that it's time to stop demonising, persecuting, isolating and punishing refugees and migrants.
On behalf of the government, I would like to indicate that the government will not be supporting the disallowance of these matters. I will just put on record, on behalf of the government, that, as part of the 2020-21 budget, the government is providing $36 million for additional FCC resourcing, including three additional general division judges, along with an additional family law judge and five additional family law judicial registrars. This will allow the court to resolve more matters every year, including an estimated 1,000 additional migration cases, which responds to the increase in FCC migration filings, from 3,544 in the year 2014-15 to 6,555 in 2019-20. This resourcing will be offset by an increase to the migration application fee, to which this regulation gives effect, with all revenue reinvested in the court. Currently, the FCC fee for migration matters is significantly lower than that of the AAT fee, and the new rate is set halfway between the AAT and Federal Court fee. Applicants will continue to have access to the court through the full fee exemption and new partial fee exemption mechanisms.
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—
Unfortunately, Senator Henderson's point of order just demonstrates that, if there was any doubt, this government doesn't understand the rule of law. The exact same issues are happening in relation to these regulations as occurred in relation to robodebt. It's about Australians, whether they be Australian asylum seekers, whether they be people receiving payments from the federal government that were incorrectly and illegally sought to be returned under robodebt or whether they be wealthier people in our community, like—through you, Mr President—you and me, Senator Henderson, that have the ability to go to the courts. The government, in increasing the fees through this regulation, is simply denying access to justice for more Australians. Thank you, Senator Henderson, for inviting me to make my speech even longer than it was going to be. This is a government that hates scrutiny, detests accountability and thumbs its nose at fundamental democratic principles and institutions, including access to justice. Labor has always fought for access to justice. This dramatic, unjustified and unjustifiable increase to filing fees in the Federal Circuit Court is inconsistent with that principle. Labor calls for them to be disallowed.
I have to say that 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—that 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.
I thank Senator Griff for tabling this disallowance, which will be supported by the Australian Greens. What the government is proposing to do, and what this motion seeks to disallow, is to massively increase filing fees for people who wish to litigate migration matters in the Federal Circuit Court. When I say 'massive', I mean an increase of over 400 per cent. Actually, it is an increase of nearly 500 per cent, so maybe 'exorbitant' would be a better description than 'massive' to describe an increase, in one case, from $690—the current fee—to $3,300—the proposed fee. The Greens hold dear the concept of access to justice, and access to justice should not be determined by the depth of somebody's pockets nor the thickness of their bankroll. Far too many people are already priced out of Australia's justice system, and the regulations which this motion seeks to disallow would just make things worse. It will decrease access to justice for some of the people in our country who need access to justice most—people seeking asylum, refugees and holders of temporary visas.
These matters are high stakes; they are potentially life-changing matters. We have a politicised Department of Home Affairs making decisions that are massively impactful on peoples' lives in order to please its political masters. There are countless examples of Home Affairs decisions being made on things like applications for asylum that are overturned in the courts. It happens ultra-regularly in this country, yet this government wants to make it more expensive for people to seek justice—500 per cent more expensive. Remember, many of these people are people who the government has banned from having work rights in our country and people from whom the government has cut off income support. Basically, the government said, 'You can't work, and we're not going to pay to keep you alive,' so the burden goes to those fantastic organisations around the country who support people seeking asylum and refugees in Australia. These people often have limited English language skills. They're unfamiliar with our judicial system and with our culture. This is a neoliberal user-pays move by the government. The proposal to lift fees is unjust, it is bad law, it has a racist underpinning and it should be disallowed. I thank Senator Griff for bringing this motion to the chamber, which will be supported by the Australian Greens.