Divorce Fees Battle Continues As Senate Disallows Regulations; Government Wins In Federal Court
Monday 24 August 2015 @ 11.53 a.m. | Legal Research
Attorney-General George Brandis is reportedly attempting to raise divorce fees for the third time, in the latest move in a parlimentary saga that has already seen two sets of disallowed regulations and a Federal Court case.
TimeBase has previously reported on the controversial attempt to raise fees in the Family Court and Federal Circuit Court, which began with the disallowance in the Senate of Schedule 2 of the Federal Courts Legislation Amendment (Fees) Regulation 2015 (Cth). The Government then introduced the Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015 (Cth), during a six-week Parliamentary recess, which ensured that the regulation could not be disallowed until Parliament returned in August. The Senate disallowed the regulation on 11 August 2015.
According to a report in the Sydney Morning Herald, the Attorney-General is trying to convince cross-benchers to support the laws in the next sitting period in September. The report also says:
“Senator Brandis' office is believed to be considering options for another regulation that involves raising and reducing different types of Family Court fees, including reducing some concession fees.”
The Federal Court Challenge
Labor MPs also attempted to challenge the second regulation in the Federal Court, arguing that it would be rendered ineffective by section 48 of the Legislative Instruments Act 2003 (Cth). The section states that once a legislative instrument has been disallowed, another legislative instrument that is “the same in substance” must not be made for another 6 months, and will have “no effect”. However, Justice Dowsett of the Federal Court dismissed this argument in Perrett v Attorney-General of the Commonwealth of Australia [2015] FCA 834, finding that the regulation was not the same in substance.
Standing
There were a number of issues discussed in the case, including that of standing. The case was originally brought by Graham Perrett, an MP from Moreton who is the Shadow Parliamentary Secretary to the Shadow Attorney-General, and Senator Claire Moore, the Shadow Minister for Women, Communities and Carers. Justice Dowsett was doubtful that their parliamentary roles would provide for the necessary standing, saying:
“Firstly, the two Houses of Parliament, in conjunction with the Governor-General, make the law. Individual parliamentarians do not. Secondly, enforcement of the law is a matter for the Executive, not the Parliament or parliamentarians. Further, parliamentary supervision of the Executive depends upon constitutional and legislative arrangements. One can imagine many difficulties emerging if individual Members of Parliament were generally permitted to seek to enforce the law.” [at 39]
He was particularly critical of the views expressed by McHugh and Kirby JJ in Combet v Commonwealth (2005) 224 CLR 494, which concerned a challenge to expenditure by the Government by the secretary of the Australian Council of Trade Unions and Nicola Roxon, an Opposition Member of Parliament, saying “they have not identified any principled basis for conferring such a right upon legislators, whether such legislators have relevant special responsibilities or not.” [at 39]
However, the issue was not a critical one as three applicants for divorce who were charged the fees were joined as additional applicants in the case.
“Same in Substance”
The case turned on the interpretation of whether the second regulation was “the same in substance” as the first, and how that should be defined. After examining the history of the provision, Justice Dowsett decided
“In my view s 48 should be construed as requiring that, in order that a legislative instrument be invalid, it be, in substance or legal effect, identical to the previously disallowed measure. Differences in form will be of no consequence.” [at 29]
The decision means the Government does not have to pay back the increased fees paid by applicants filing before the second regulation was disallowed.
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Sources:
Perrett v Attorney-General of the Commonwealth of Australia [2015] FCA 834
