EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 245

Judiciary Act 1903

High Court of Australia (Fees) Amendment Regulations 2010 (No. 2)

Section 88 of the Judiciary Act 1903 (the Act) provides, in part, that the Governor-General may make regulations not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act, including prescribing certain fees in respect of proceedings in the High Court.

The High Court of Australia (Fees) Regulations 2004 (the Principal Regulations) prescribe certain fees for court proceedings and make provisions about the payment of those fees.

The purpose of the regulations is to amend the Principal Regulations to replace fee exemptions with low flat fees.

Under the Regulations, a person who was previously exempt from the payment of court fees under certain specified categories in the Principal Regulations will instead pay a low flat fee (‘reduced fee’) of $100. After paying either a full fee or a reduced fee, a person does not need to pay any further fees within that proceeding (except fees for obtaining a document or service under Part 2 of Schedule 1), provided he or she continues to fall within one of the categories.

The Regulations also change the amount of the fee for criminal special leave applications to retain administrative simplicity for the High Court in implementing the reduced fee arrangements.

These changes are part of a package of measures the government is implementing in the 2010‑11 Budget for its Strategic Framework for Access to Justice, which is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate into larger problems.

Details of the Regulations are set out in the Attachment.

The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commenced on 1 November 2010.

 

The High Court of Australia has been consulted in relation to these regulations.  The Law Council of Australia and National Legal Aid have been consulted in relation to the policy behind these regulations.  This level of consultation is appropriate because the amendments arise out of a 2010-2011 Budget decision.

 

Authority: Section 88 of the

Judiciary Act 1903

ATTACHMENT

Details of the High Court of Australia (Fees) Amendment Regulations 2010 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the High Court of Australia (Fees) Amendment Regulations 2010 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 November 2010.

 

Regulation 3 – Amendment of High Court of Australia (Fees) Regulations 2004

 

This regulation provides for the amendment of the High Court of Australia (Fees) Regulations 2004 (the Principal Regulations) as set out in Schedule 1.

 

Regulation 4 – Transitional

 

This regulation provides that the system of fee exemptions described in subregulation 9(1) of the Principal Regulations continues to apply to proceedings commenced before 1 November 2010. As a result, the reduced fees replacing exemptions (in regulation 9 in item [5] below) will only apply to proceedings commenced on or after 1 November 2010.

 

Schedule 1 – Amendments

Item [1]                      Subregulation 5 (1), after definition of corporation

This item inserts a definition of the term ‘full fee’ for the purposes of implementing item [5] below. The term ‘full fee’ refers to the standard fee that is payable where no fee reductions or waivers apply.

Item [2] Subregulation 5 (1), after definition of proceeding

This item defines the term ‘reduced fee’ for the purposes of implementing item [5] below. The ‘reduced fee’ is defined as the amount listed in item 110 of Schedule 1 to the Principal Regulations, inserted by item [10] below.

Item [3] After subregulation 6 (1)

This item inserts new subregulation 6(1A), which provides that where a reduced fee would otherwise operate in place of a filing or hearing fee (in accordance with regulation 9 in item [5] below), the reduced fee is payable at the same time that the full fee would otherwise have been payable.

Item [4] Subregulation 8 (5)

This item amends subregulation 8(5) to remove references to fees that are not payable under regulation 9 of the Principal Regulations. Instead, this subregulation provides that a person is not liable to pay a full fee mentioned in Part 1 or Part 3 of Schedule 1 if regulation 9 applies, in accordance with item [5] below.

Item [5] Regulation 9

This item replaces the previous regulation 9 of the Principal Regulations with a new regulation 9. The new regulation 9 provides for the payment of a reduced fee by persons who were exempt from payment under paragraph 9 of the Principal Regulations.

Subregulation 9(1) provides that regulation 9 applies to persons in one of the categories set out in paragraphs 9(1)(a) and (b). It replicates and replaces the categories currently set out in existing regulation 9 of the Principal Regulations. These categories are:

-         recipients of legal aid (paragraph 9(1)(a)), and

-         persons holding certain concession cards or in receipt of certain benefits, persons serving a term of imprisonment or otherwise lawfully detained, and persons aged less than 18 years (paragraph 9(1)(b)).

The definition of concession card was removed from subregulation 9(2) of the Principal Regulations, as the relevant concession cards are now described in subregulation 9(1). Subregulation 9(2) continues to provide that a holder of a card referred to in paragraph 9(1)(b) does not include a dependant of the holder of the card.

Subregulation 9(3) provides the general rule that, on the first occasion a fee is payable by a person described in subregulation 9(1), the reduced fee of $100 is payable instead of the full fee.

Subregulation 9(4) provides that, once a person described in subregulation 9(1) has paid a fee in a proceeding under subregulation 9(3), that person is not required to pay any further fees in connection with the proceeding. This means that a person described in subregulation 9(1) will only need to pay the reduced fee once in a proceeding.

Subregulation 9(5) provides that this regulation will apply to each new proceeding that is commenced. This clarifies that, unlike the other court regulation amendments that are being made concurrently, these regulations will not allow a Registrar or authorised officer to waive payment of a fee in a subsequent related proceeding.

Item [6] After subregulation 10

This item inserts a new regulation 10A to provide for circumstances where a person’s eligibility under subregulation 9(1) to pay a reduced fee changes after commencement of a proceeding. This ensures that the requirement for a person to pay a fee will be determined by the person’s circumstances when the fee is payable, rather than their circumstances at the commencement of the proceeding.

 

Subegulation 10A(1) applies to a person who has paid a full fee, or a one-third fee under regulation 10 of the Principal Regulations, in a proceeding and subsequently becomes eligible to pay a reduced fee under regulation 9. It ensures that subregulation 9(4) applies to the person as if the person had paid a fee under subregulation 9(3). This means that no further fees would be payable by the person in the proceeding.

Subegulation 10A(2) applies to a person whose circumstances change so that the person no longer comes within a category described in subregulation 9(1). It provides that the person would be liable to pay all fees that become payable after the change in circumstances.

It is not necessary to include provisions relating to changes in a person’s financial circumstances for the purposes of regulation 10 of the Principal Regulations, as an assessment of eligibility will be made on each occasion that a fee is payable. Therefore, for each assessment made under regulation 10, a Registrar or authorised officer will need to take changing circumstances into account.

Item [7] Subregulation 13(3)

This item inserts new subregulations 13(3) and 13(3A) into the Principal Regulations. Subregulation 13(3) provides a general rule for refunding fees where an individual has paid more than is required under the Principal Regulations. This amendment ensures that a person who has paid a full fee, but is only required to pay a reduced fee, is entitled to a refund of the amount that was overpaid. Subregulation 13(3A) defines the refund amount as the difference between the fee paid by a person and the amount the person is required to pay for the fee.

Item [8] Regulation 14

This item changes the date for calculating biennial increases to 1 July 2010 because all fee amounts in the regulations were updated to include previous biennial increases by the High Court of Australia (Fees) Amendment Regulations (No. 1), which came into effect on 1 July 2010. This item also ensures that the reduced fee, inserted by item [10] below is not subject to the biennial increase in fees.

Item [9] Schedule 1, item 104

The fee for a criminal special leave application is the only fee in Part 1 of Schedule 1 to the Principal Regulations that is payable under regulation 9 and is less than $100. This item increases the fee for criminal special leave applications from $97 to $100. This ensures that regulation 9 in item [5] above will not need to provide separately for circumstances where the full fee is less than the $100 reduced fee. This arrangement makes the fee system in regulation 9 easier for court users to understand, and simpler for the court to administer.

As a consequence, a person whose fee is partially waived for reasons of financial hardship under regulation 10 of the Principal Regulations, will pay only one third of the full fee ($33) for criminal special leave applications, which is less than the $100 reduced fee that would be payable by a person in one of the set disadvantage categories. A person in a disadvantage category could apply for a partial fee waiver for reasons of financial hardship under regulation 10.

Item [10] Schedule 1, part 1, after item 109

This item specifies the amount of the reduced fee that is payable under regulation 9, inserted by item [5] above. The amount of the fee is $100.

Item [11] Schedule 1, part 1, note

This item provides clarification about which fees are subject to biennial increase in accordance with the formula in Schedule 2 to the Principal Regulations. The note reflects the content of the amendment to regulation 14, made by item [8] above, and explains that the reduced fee of $100 inserted by item [10] above is not subject to the biennial increase in fees.