Disputes Tribunal Amendment Bill

Members, we now come to Part 2. Part 2 is the debate on clauses 8 to 10, “Amendments to other enactments”, and Schedule 2. The question is that Part 2 stand part.

Thank you, Madam Chair. I understand that Part 2 amends the Disputes Tribunal Rules, and I must say I was very surprised to have those amendments ruled out of order, because they all dealt with situations where the limit had been increased. In fact, my other amendment deals with the Disputes Tribunal Rules and, in particular, the fees. What we have is an amendment that inserts a new fee of $468—a filing fee—“… in respect of which an order of the Tribunal is sought under the claim is $30,001 or more.” The filing fee in the District Court, which can be waived, is $260.

This is an access to justice point. If I’ve got a claim—if someone has caused me damage, in some way—of $35,000, but I don’t have $468 to file, I don’t get to go to the Disputes Tribunal. Poor people don’t have $468 in spare cash to pursue people who cause them harm. My amendment is to say that where there is a claim over $30,000, a Disputes Tribunal referee has the power to waive the application fee. It may be that it should be in whole or part, but, in any event, you can imagine, if you’ve been defrauded, scammed, out of your savings and you find the scammer and you want to try and get it back, but, crikey, your bank account has been cleaned out, you haven’t got $468, and you’re not going to get it from instant finance. My view is that, if you’re going to have genuine access to justice—and, arguably, this is all about access to justice—you need to be able to say, “In this case, this fee is waived.”

Now, I know that there’s now a new power on a Disputes Tribunal referee to order that the filing fee be repaid if you win, but that’s not the same. This is about getting into the tribunal, not getting award coming out of the tribunal. It’s really important that we recognise that. It’s not good enough to say, “Well, if you win, you get your fee back”, because you’re never going to get there. You’re not even going to get to ask the question unless the tribunal says, “All right.” It’s hard enough for many people to have the wherewithal to do what’s a pretty legalistic process. I totally appreciate that it’s low form—nothing like the District Court or High Court—but for many people this will be the first interaction they have with the justice system. They’ve got to do all the form-filling and come up with $468. The idea that you can waive a District Court fee for $260 but not a Disputes Tribunal fee for $468, frankly, is a nonsense—it absolutely beggars belief.

Again, this was raised at select committee and wasn’t something that I was able to persuade members to make a change about, but now that we’re here in the committee of the whole House and the Minister is there—and I know he’s a thoughtful Minister, and a Minister who’d want to see people have access to justice and doesn’t want to see people who don’t have $468 precluded from bringing their claims—maybe he’ll be able to accept that. Of course, if he wants to go and improve the drafting, I’d be happy for us to report progress on this bill so that could be done as well. I think we should take our time rather than rushing through it. It is a serious point, and it’s a real one, because there’ll be plenty of people who don’t have that money and will be denied justice. I’d be interested in his response to that.

Thank you, Madam Chair. I think just to add on to that, one other thing that has been discussed with officials as part of the committee stage was the fee setting of $468, as we see here in clause 9, is a simple extrapolation of the doubling of the baseline amount of $30,000 to $60,000. The assumption that was made with no evidential basis as we saw during the select committee is that people with a $30,000 claim will have $234 to be able to file as a filing fee, ergo people who have up to $60,000 claim will be able to pay for that.

I think the other consideration there that needs to be mentioned is it’s not simply that that is a scale from $30,000 to $60,000—that is, if your claim is $30,001, you see a doubling of filing fee as opposed to a progression—so I just want to also check with the Minister in terms of the rationale for something like that. Why was there only one band that was considered, which is doubling the fee, but not, I guess, a progression or proportionality, if you’re looking at, let’s say, within $100 or $1,000 brackets, as a result? I think that does, as the previous speaker the Hon Dr Duncan Webb said, further limit people’s ability to access justice.

I want to raise another point on top of this. One of the things is in terms of what we see in the regulatory impact statement, on the final page, around cost breakdown. Now, the cost breakdown here is also based on the estimation of the $60,000 increase, including the total estimated filing fee revenue. As the Hon Dr Duncan Webb mentioned, if people have to, essentially, take a leap of faith and put down the filing fee or potentially there’s an option for them to have the filing fee deducted if they won a particular case in the tribunal, is the estimated filing fee revenue that is on page 34 of the regulatory impact statement correct, or are we also anticipating that we will not get to that amount either because this won’t have the projected benefit and revenue generation opportunity because not that many people will have that amount of money to file? Or will there be a greater reduction because people will not be able to pay for those filing fees, which are then just generated as potential debt?

That is, I guess, one question further on from what the Hon Dr Duncan Webb mentioned, and the second question is around the estimated filing fee revenue in the regulatory impact segment.

Thank you very much, Madam Chair, and thank you, members. I think both questions are really focusing on the point around whether the higher filing fee will be a barrier to access in the context of individuals, and which noted—first and foremost, the reality, as the Government sees it, is that it is appropriate for users of the tribunal to pay a fee in order to recover the costs of running that tribunal. That is because, actually, a $30,000 or up to $60,000 investment does provide significant private benefit in using that tribunal to resolve a dispute. It is also a significantly more efficient mechanism in order to bring proceedings than, say, through the District Court process, due to other aspects which are obvious but particularly around court fees etc.

I think the point in reference to particular individuals who are in a financial sense going to find that threshold is above their means from an affordability point of view is that, separately, the Government is considering a proposal that is progressing through the Regulatory Systems (Tribunals) Amendment Bill, which will basically enable referees to put in place that the respondent pay the cost of the filing fee back to the party who is a successful applicant. So that mechanism in order to ensure that that repayment is made is something that has been considered as part of that process, and that will ensure—I think, to the points raised in some contexts—that the costs do not fall on those that have been wronged and will remove a further barrier to access injustice.

So, in my view, that covers questions on clause 9(2), inserting new paragraph 5(1)(d), and the points raised by the two members.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 9 be agreed to.

Can I just make a comment that many times votes have been changed in this House, so individual members who are new should not feel that they are isolated.

Part 2 agreed to.

Schedule 1 agreed to.

The question is that the Minister’s amendment to Schedule 2 set out on Amendment Paper 259 be agreed to.

Amendment agreed to.

Schedule 2 as amended agreed to.

Clauses 1 and 2