Cognate Debate

Leave granted for the Suitors’ Fund Amendment Bill 2017 and the Suitors’ Fund Amendment (Levy) Bill 2017 to be considered cognately, and for the Suitors’ Fund Amendment Bill 2017 to be the principal bill.

Second Reading — Cognate Debate

Resumed from 12 September 2018.

Comments and speeches from various members

HON ALISON XAMON (North Metropolitan) [9.12 pm]: I rise as the lead speaker for the Greens and indicate that we will be supporting the Suitors’ Fund Amendment Bill 2017 and the Suitors’ Fund Amendment (Levy) Bill 2017, which we are currently debating cognately. The Suitors’ Fund Act 1964 established the suitors’ fund. It might sound like a bit of a dry issue, but it is one of those bills that is actually quite important to sort out. It is not until someone has required the funds from the suitors’ fund that they realise exactly how important it is.

Each time certain proceedings are issued in the Supreme Court, District Court or Magistrates Court, a small fee, which is currently between 10¢ and 20¢ as prescribed, is paid. This is the money that is credited to the suitors’ fund. The current amount is 20¢. It has been 20¢ since 1965, when post–decimal currency legislation changed the specified two shillings to 20¢. It is hard to believe, but it is older than me!

The suitors’ fund pays for the reimbursement of legal costs to litigants in circumstances specified in the act. Essentially, it is circumstances in which a litigant incurs legal costs through no fault of their own. When the suitors’ fund funds are insufficient, under the act, the difference can be advanced by Treasury and the fund repays it when it can. But because the amount currently available to the fund is so low, the fund has been leaning on Treasury for more funds than it is likely to be able to repay, if it continues to raise funds at the current rate. To give members an idea of the sort of deficit we are talking about, in 2016–17, the fund paid out $136 582 but raised only $42 879. Treasury advanced $2 million until 30 June 2015, and in November 2016 that was increased by half a million dollars, making the total balance owing $2.5 million. Quite clearly, the fund is not going to be in a position to repay this unless the levy is increased. This is despite the fund being underutilised, because the cost of paying a lawyer to apply to access the fund can outweigh the payout from the fund, which strikes me as an extraordinary injustice, particularly when, as I remind members, the purpose of accessing this fund is when litigants have incurred legal costs through no fault of their own. In 2016–17, the fund paid out on three occasions under section 10, and that was a successful appeal on a question of law. All three parties were involved in the same case, and that came to a total of $6 000. On three occasions it paid out under section 14(1)(a), and that was for proceedings aborted by the death or protracted illness of the judge, magistrate or justice before whom the proceedings were had, or by disagreement on the part of the jury when the proceedings were with a jury. That came to a total of $119 000. On one occasion, the fund paid out under section 14(1)(d), when the criminal proceedings were adjourned by the prosecution without it being the fault of the accused. In that instance, there was a payout of $7 500.

The substantive bill aims to address the disparity between the fund’s ins and outs by removing the cap on the levy, so that the levy will be whatever the amount is as set by the regulations. That bill also proposes that the levy be able to be tiered, so that different proceedings can attract different amounts. The explanatory memorandum indicates that the intention is to set levies that are proportionate to the quantum of costs in that jurisdiction, which seems like a fairer way to raise those funds. The Attorney General has stated that the intended figure is about $10 in the higher courts and $5 in the lower courts. That gives members an idea of the disparity between the sorts of moneys we are looking to raise and what is currently able to be raised. The second bill is required because the levy is a tax. Section 46(7) of the Constitution Acts Amendment Act 1899 requires a separate bill in order to impose a levy. The bill’s approach to setting the levy is as recommended by the Appeal Costs Board; that is, the body constituted under the act to direct, control and manage the fund. This is a different approach from that recommended by the WA Law Reform Commission. The Law Reform Commission recommended that the levy be set as a percentage of the court fees collected. The Law Reform Commission proposed four per cent when it considered the matter way back in 1976. I ask the minister to confirm that the Appeal Costs Board considered, but obviously rejected, the approach recommended by the Western Australian Law Reform Commission. I understand the board considered the Law Reform Commission’s approach; it thought that it was too prescriptive and not sufficiently futureproof and felt that the approach taken in the bill was more likely to function appropriately, regardless of how court fees may be calculated in the future. I would like to know whether this was even part of the consideration.

The bill does not restrict the amount of the levy that can be imposed by regulation. It is not capped. It is not set with reference to any criteria—for example, predicted draws on the fund or a proposed plan for a repayment to Treasury. Again, I note that because it is a tax, it is not cost recovery. The State Law Publisher shows precedent for both levy legislation without restrictions and levy legislation with restrictions. The Greens generally prefer that levy legislation contain a clear method of calculation, rather than being left unrestricted. However, I note that there are some safeguards in the legislation. The Attorney General has stated on the record that the intended quantum is about $10 in the higher courts and $5 in the lower courts. I note that the usual disallowance process will apply to the regulations that will prescribe the amount of the levy.

The fund is an agency special purpose account under section 4 of the parent act; in other words, the money raised does not go into consolidated revenue. The regulations prescribing the levy amount will have to be consistent with that special purpose.

As I said, it is important that we ensure that we have a fairer way for people to recover their moneys when court proceedings cease through no fault of their own. This legislation is long overdue. It is important that we look at mechanisms to ensure that funds such as these, which exist for good purposes, are not constantly left in the precarious position of having to go back to Treasury for top-ups. It is not a satisfactory way to operate. Hopefully, this will help to rectify that. With those few words, I indicate once again that the Greens will support this legislation.

Comments and speeches from various members

Debate adjourned, pursuant to standing orders.


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