Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020 - Disallowance

23 February 2021

Senator GRIFF (South Australia) (16:00): I move:

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.

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