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‘User-pays’ model a threat to access to justice

‘User-pays’ model a threat to access to justice

A Tasmanian judge has spoken out against recommendations in the Productivity Commission’s Access to Justice Report allowing civil courts and tribunals to recover full costs.

Speaking at the recent Australian Lawyers Alliance conference in Hobart, Supreme Court Justice Stephen Estcourt said the so-called 'user-pays' model recommendation had largely gone under the radar and shouldn’t have.

The suggested model would see courts and tribunals recover their full costs in all cases, according to The Mercury.

Justice Estcourt said: “In my view they represent the single greatest threat to access to justice, and consequently to the rule of law, that I have witnessed in my professional lifetime.

“User-pays policies treat justice as a service that can be bought rather than as a public good provided by the judicial arm of government.”

According to Justice Estcourt cost-recovery principles ignored “the fundamental and essential function of courts in dispensing justice in a modern, democratic society”.

Some cost-recovery methods already have been introduced in response to the commission’s recommendations, such as increasing some Family Court costs, including the cost of filing for divorce.

Another example is the state government in Tasmania’s introduction of a criminal levy. The levy will set offenders back $150 if convicted in the Supreme Court and $50 for those convicted in the Magistrates Court.

ALA Tasmanian president Henry Pill said: “We know that the people who use courts the most are vulnerable people, including young people, people with mental health problems and victims of abuse or violence.

“Placing further fees on these people is unfair, they need more access to justice, not less.”

According to Mr Pill courts are “an essential part of our society and to tax people to use them is an unjust punishment”.

Update: The Productivity Commission issued a response to the report in the Mercury, saying its 2014 Access to Justice report did not recommend across the board full cost recovery.

According to the Commission, its report found that there was no consistent approach for setting court fees across jurisdictions and in many, fees were poorly targeted. The Commission put forward a more systematic approach for setting court fees, and only recommended full cost recovery in cases where parties had a substantial private interest at stake, such as large commercial matters.

"We recommended the money recovered from these types of cases be put back into the court system to improve it and to help fund legal assistance.” Commissioner Dr Warren Mundy said.

The report also recommended that costs should not increase for cases involving family violence, child protection, deprivation of liberty, guardianship, mental health and claims for asylum or protection, the Commission claimed.

“Our report was very mindful of the need for all people to have access to justice. Indeed, the focus of the report was helping people resolve their civil disputes more quickly and more cheaply,” Dr Mundy said.

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