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Bills Digest No. 141 1999-2000Child Support Legislation Amendment Bill 2000

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Child Support Legislation Amendment Bill 2000

Date Introduced: 9 March 2000

House: House of Representatives

Portfolio: Community Services

Commencement: On Royal Assent

Purpose

To enable regulations to be made under the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988 and the Family Law Act 1975 prescribing matters relevant to the fulfilment of Australia's international maintenance arrangements.

Background

Maintenance obligations

Three Commonwealth statutes contain provisions for the maintenance of children. They are the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988 and the Family Law Act 1975. The Family Law Act 1975 also provides for spousal maintenance.

As well as indicating what factors courts and administrative authorities must look to when making child maintenance decisions, these statutes also provide that parents have a duty to maintain their children. Subsection 3(1) of the Child Support (Assessment) Act 1989 states that 'The parents of a child have the primary duty to maintain the child.' Subsection 4(1) states that 'The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.' Similar provisions are found in the Family Law Act 1975.

Statements about the maintenance of children may also be found in international treaties to which Australia is a party. For example, Article 27 of the United Nations Convention on the Rights of the Child provides that:

1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

Child maintenance and support in Australia

There are two schemes which govern the payment of child maintenance/support in Australia. The first is a discretionary scheme established under the Family Law Act 1975 which enables a court to make a child maintenance order. The second is established under child support legislation which permits an child support assessment to be calculated by an administrative body using a statutory formula.

Family Law Act 1975

Court-ordered child maintenance in general applies in the case of marital separations or childbirths which occurred before 1 October 1989.

Child support legislation

The Child Support Scheme was established to remedy deficiencies in court-ordered maintenance and was introduced in two stages. In Stage 1, the Child Support Act 1988 was passed to establish the Child Support Registrar and the Child Support Agency and enable court orders for child maintenance to be registered with and collected by the Child Support Agency. The Child Support Act 1988 is now called the Child Support (Registration and Collection) Act 1988.

In Stage 2, a new scheme for child support was established by the Child Support (Assessment) Act 1989 for children whose parents had separated on or after 1 October 1989 or who were born on or after 1 October 1989. As stated above, the Child Support (Assessment) Act 1989 sets out the statutory formula for determining the annual rate of child support to be paid by a liable parent.

Spousal maintenance

The Family Law Act 1975 also provides for spousal maintenance. Orders for spousal maintenance can be sought either during marriage or after divorce-although the former are very rare.⁽¹⁾ The circumstances in which spousal maintenance can be granted are limited. Section 72 provides a threshold test that must be satisfied. The applicant spouse must be able to prove that he or she needs maintenance and that the other spouse is able to pay it. If the court is satisfied about those things, then under section 74 it proceeds to make such orders 'as it considers proper' taking into account a list of factors set out in subsection 75(2) of the Act.

International maintenance enforcement arrangements

Australia has entered into two types of international arrangement designed to ensure that children are financially supported when they or their parent change their country of residence. These are bilateral arrangements and multilateral treaties.

Section 110 of the Family Law Act enables regulations to be made so that spousal or child maintenance orders and agreements made in 'reciprocating' jurisdictions can be registered in Australian courts and enforced by them. Conversely, it enables regulations to be made so that maintenance orders handed down by Australian courts can be enforced in those reciprocating jurisdictions. The relevant regulations are found in Part III of the Family Law Regulations. They specify procedures to be followed-for example, in relation to the registration of overseas maintenance orders, the transmission of orders made in Australia for enforcement in reciprocating jurisdictions, and the confirmation of overseas maintenance orders. Countries with whom Australia has bilateral arrangements are listed in Schedule 2 of the Regulations. They include many members of the British Commonwealth and a number of European countries.⁽²⁾

Where a payer who is subject to court-ordered maintenance leaves Australia and goes to a reciprocating jurisdiction, then the payee can ask an Australian court to forward relevant documents to that jurisdiction so that the order can be registered in a foreign court and enforcement action taken. The situation is more complicated if no Australian maintenance order is in force. In these circumstances the payee must obtain a provisional order from an Australian court, relevant documents must be sent to a court in the reciprocating jurisdiction and that court must decide whether to confirm the provisional order, thus allowing it to be enforced against the payer.

An Issues Paper published by the Attorney-General's Department in 1999 made the following comments about existing reciprocal arrangements:

The effectiveness of existing reciprocal arrangements in obtaining maintenance for Australian payees is variable. Delays and poor outcomes are common where an Australian payee has to go through the process of obtaining a provisional order from an Australian court and seeking confirmation of it by an overseas court ... Overseas payees [and] child support agencies have also been critical of the operation of existing procedures for obtaining maintenance for children overseas.⁽³⁾

Arrangements similar to those described above apply to a person the subject of a maintenance order made by an Australian court who goes to the United States. This situation is dealt with under the US Uniform Reciprocal Enforcement of Support Orders Act (URESA). Australia has arrangements with 46 US States under this scheme. However, '[t]he experience of the Attorney-General's Department is that US cases are complex and time consuming because child support legislation and procedures vary considerably from State to State in the USA.'⁽⁴⁾

It is also possible for a person in Australia to seek maintenance payments under a multilateral treaty to which Australia is a party-the United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM). Australia became a party to the Convention in 1985. However, UNCRAM has been found to be an unsatisfactory option for Australian payees who must rely on overseas authorities to commence new maintenance actions on their behalf. The scheme incurs costs for Australian legal aid authorities who assist people in Australia to prepare applications which will be sent overseas and who represent overseas UNCRAM applicants in Australian courts.⁽⁵⁾ UNCRAM has been criticised as a slow and expensive process which is rarely successful for Australian payees.⁽⁶⁾ The Joint Select Committee on Certain Family Law Matters concluded in November 1994 that:

... the simplest and most effective method of enforcement of overseas maintenance orders should be utilised. ... the preferred approach is the expansion of the existing reciprocal arrangements as the approach adopted by UNCRAM is too cumbersome and costly.⁽⁷⁾

The Child Support Scheme and international maintenance enforcement

Stage 1 of the Child Support Scheme enables persons with orders for child maintenance from an Australian court that are registered with the Child Support Agency to have those orders enforced in reciprocating countries against payers. These provisions are found in section 30A of the Child Support (Registration and Collection) Act 1988. Additionally, section 124 of the Child Support (Registration and Collection) Act 1988 allows overseas orders to be registered with the Child Support Agency once they have been registered in an Australian court.

However, the situation with administrative assessments for child support made under Stage 2 of the Child Support Scheme is problematic. First, the effect of subparagraph 25(2)(b)(ii) of the Child Support (Assessment) Act 1989 is that an assessment application cannot be made if the liable parent is not an Australian resident. Second, if a person with an existing child support assessment liability leaves Australia the assessment ceases to have effect. This is because subsection 12(3) of the Child Support (Assessment) Act 1989 says that a 'child support terminating event' will occur if the liable parent 'ceases to be a resident of Australia.' In these circumstances the child's carer must seek a court order for child maintenance which can then be registered and enforced overseas. This is a costly and time consuming exercise which the Attorney-General's Department notes is 'often funded by Commonwealth legal aid'.⁽⁸⁾

Further, a child support assessment cannot be made under the Child Support Scheme unless the child is an 'eligible child'. An 'eligible child' is a child who is present in Australia when the application is made and who is an Australian citizen or ordinarily resident in Australia when the application is made.⁽⁹⁾ In 1999, the Attorney-General's Department commented:

In practice very few overseas children meet these criteria and so Stage 2 of the [Child Support] scheme has little relevance to Australia's arrangements for obtaining maintenance for children overseas.⁽¹⁰⁾

Proposed new arrangements for international maintenance enforcement

Australia's existing international arrangements for the enforcement of child maintenance liabilities suffer from a number of deficiencies. First, they are designed only to cater for court-ordered maintenance. Administrative means is now the method by which most child maintenance liabilities are assessed in Australia and is becoming common in many overseas countries.⁽¹¹⁾ Second, Australia does not have bilateral arrangements with a number of countries which can be described as 'source' countries for migration to Australia. Third, enforcement in overseas countries can be complex, time-consuming and expensive.

The Government is proposing to become a party to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations and to enter into new bilateral arrangements with the USA and New Zealand in order to address these deficiencies. Proposed treaty actions in respect of the Hague Convention and the agreement with New Zealand were tabled in Parliament on 7 March 2000 and, at the time of writing, were being reviewed by the Joint Standing Committee on Treaties.

The Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations

The Hague Conference is an intergovernmental organisation which negotiates and drafts multilateral treaties on a range of private international law issues.⁽¹²⁾ It first met in 1893 and since 1956 has held plenary sessions every four years. Along with 46 other countries⁽¹³⁾, Australia is a member of the Hague Conference. Hague Conference treaties to which Australia is a party include the Convention on the Civil Aspects of International Child Abduction and the Convention on Inter-Country Adoption of Children. Another Hague Conference treaty is the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. The Convention has 19 signatories.⁽¹⁴⁾ It applies both to child and spousal maintenance and obliges parties to recognise and enforce maintenance decisions made by courts or administrative means in another Convention country.

The Hague Convention offers a number of advantages. As stated above, it applies to maintenance decisions made by administrative bodies. In other words, in conjunction with relevant amendments to the Child Support (Assessment) Act 1989, it would enable existing liabilities under the Child Support Scheme to be enforced against payees who move to a Hague Convention country. Next, Australia's accession to the Convention may obviate the need to negotiate separate reciprocal arrangements with countries who are parties to the Convention. Further, the Hague Convention is said to provide for a 'relatively simply and speedy enforcement of existing Australian liabilities by overseas courts and child support agencies.'⁽¹⁵⁾ Lastly, a number of States Parties to the Hague Convention are migrant 'source 'countries for Australia.⁽¹⁶⁾

At the time of writing Australia was not a party to the Hague Convention. The Government proposes to accede to the Convention on, or as soon as possible after, 14 April 2000. The treaty will come into force for Australia on the first day of the third calendar month following the expiry of a period of 12 months after lodgement of the accession instrument.⁽¹⁷⁾ Once Australia becomes a party to the Convention it is obliged to enact domestic legislation for the recognition and enforcement of child support and spousal maintenance decisions made in other Convention countries.⁽¹⁸⁾

Proposed maintenance enforcement agreement with New Zealand

A new reciprocal maintenance arrangement has also been negotiated with New Zealand. This agreement provides for the recognition and enforcement of court-ordered and administratively-assessed maintenance. Existing arrangements with New Zealand⁽¹⁹⁾ only apply to enforcement of court orders. The National Interest Analysis for the new arrangement with New Zealand notes that it provides for 'simple and speedy enforcement of Australian liabilities by the New Zealand Child Support Agency.'⁽²⁰⁾

The agreement will commence 30 days after the Australian and New Zealand Governments notify each other that the relevant domestic arrangements are in place. The Government proposes to give such notification as soon as practicable after 14 April 2000.⁽²¹⁾

Proposed maintenance enforcement agreement with the USA

Further, an agreement has recently been negotiated with the US Government for the enforcement of child and spousal maintenance decisions. The existing situation is that reciprocal arrangements are in place between Australia and most, but not all, US States. It appears that, at present, enforcement proceedings are difficult and time consuming because child support legislation and procedures vary between US States. It is intended that the new agreement will streamline procedures because the US Federal Government will assume a co-ordinating role.

Main Provisions

Amendments to the Child Support (Assessment) Act 1989

Item 1 of Schedule 1 amends section 4 of the Child Support (Assessment) Act 1989 which sets out the objects of the legislation. It adds a further object-that of ensuring that Australia can give effect to international arrangements relating to maintenance obligations. Maintenance obligations are referred to in terms of obligations arising from 'family relationship, parentage or marriage.' The Explanatory Memorandum states that this phrase is used '... to avoid any implication that international arrangements can be implemented only in respect of children who are the biological offspring of a person (and not, for example, step children to whom a parent may have an obligation) or in respect of a spouse (and not a spouse to a void marriage to whom the other spouse may have an obligation).'⁽²²⁾

Item 2 adds new section 163B to the Act. New section 163B will enable regulations to be made giving effect to maintenance obligations associated with international agreements or which arise because a payer, payee or person on whose behalf maintenance is claimed (eg a child) is in a prescribed reciprocating jurisdiction. New subsection 163B(3) provides that regulations made under new section 163B may be inconsistent with the Act and prevail over it to the extent of any inconsistency.

Amendments to the Child Support (Registration and Collection) Act 1988

Items 3 and 4 make corresponding amendments in the Child Support (Registration and Collection) Act 1988 by amending subsection 3(1) and inserting new section 124A.

Amendment of the Family Law Act 1975

Item 5 inserts new section 124A into the Family Law Act 1975. New section 124A enables regulations to be made in relation to overseas-related maintenance obligations and corresponds to the amendments proposed by items 2 and 4 of Schedule 1.

Concluding Comments

In 1999, the Attorney-General's Department circulated an Issues Paper entitled International Child Support Enforcement. Proposed New Treaty Arrangements. The Issues Paper contained proposals for amending the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988, the Family Law Act 1975 and for making regulations in order to implement new international maintenance enforcement treaties and arrangements. The proposed amendments were described in Attachment 4 of the Issues Paper. For example, proposals were made to amend the Child Support (Assessment) Act 1989 to set out, for each prescribed overseas country, different jurisdictional limitations relating to which children could be the subject of administrative assessment by the Child Support Agency, who could apply for child support and who could be regarded as a liable parent. In relation to other amendments-for example, amendments enabling notices to be sent to liable parents in overseas jurisdictions-the Issues Paper appears to have envisaged that details would appear in regulations. In other words, it generally appears to have been suggested that matters of substance would appear in primary legislation and that procedural matters would be dealt with in delegated legislation.

However, the Child Support Legislation Amendment Bill 2000 provides that all matters relevant to the recognition and enforcement of international maintenance obligations will be contained in delegated legislation (regulations). Page 3 of the Explanatory Memorandum sets out some of the areas that might be covered by the regulations.

Divergent views exist on what is the appropriate content of primary legislation on the one hand and delegated legislation on the other.⁽²³⁾ The Administrative Review Council remarked in its 1992 report, Rule Making by Commonwealth Agencies:

The view that the general role of delegated legislation is to fill in details in a legislative scheme is well established. It assumes that once Parliament has debated and approved general principles in primary legislation the executive might properly be authorised to supply the details in accordance with those principles. There would be no need for Parliament to debate the matters but it could check whether the executive was acting in accordance with the established principles by requiring the tabling of delegated legislation and disallowing that which it did not approve. This remains the general starting point for the distinction between primary and delegated legislation.⁽²⁴⁾

In practice, it appears that agencies 'stray in both directions from the basic distinction between primary and delegated legislation in giving drafting instructions for new legislation.'⁽²⁵⁾ For example, a submission to the Administrative Review Council made by the Office of Parliamentary Counsel said that substantial matters of principle sometimes appear in regulations when there is 'not enough time to include all matters of substance in the Act'⁽²⁶⁾ or when regulations provide necessary flexibility so that changing circumstances can be easily accommodated.⁽²⁷⁾

The Bill also contains 'Henry VIII clauses.'⁽²⁸⁾ Definitions of 'Henry VIII clauses' vary.⁽²⁹⁾ One definition is that a 'Henry VIII clause' is a provision which enables the empowering statute to be amended by delegated legislation.⁽³⁰⁾ Henry VIII clauses are used, apparently increasingly so, in Australian jurisdictions.⁽³¹⁾ The Administrative Review Council commented in 1992:

... Henry VIII provisions are defended on the basis that it would be impractical to return to Parliament with changes to the [empowering] Act that are relatively minor in nature. However, it is clearly inappropriate for a body subordinate to Parliament to amend or alter an Act made by Parliament. This is particularly so when changes affect the essential elements of a scheme, alter the ambit of legislation, place restrictions on rights, or alter obligations.⁽³²⁾

On the other hand, a recent report of the Queensland Legislative Assembly's Scrutiny of Legislation Committee concluded that the 'Henry VIII clauses' could be justified in limited circumstances. In the Committee's words 'possibly justifiable'⁽³³⁾ uses might include facilitating immediate Executive action, facilitating the effective application of innovative legislation or facilitating transitional arrangements.⁽³⁴⁾

Among other things, the Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances look at whether legislative power has been inappropriately delegated in the Bills and regulations which come before them. The Scrutiny of Bills Committee's Alert Digest No.3 of 2000 commented on the Child Support Legislation Amendment Bill. On the question of the 'Henry VIII clause' it quoted the Explanatory Memorandum which stated that 'purpose of this approach is to allow the regulations to vary the operation of the ... Act where the existing provisions are not appropriate for the purpose of meeting Australia's international maintenance obligations'.

The Scrutiny of Bills Committee observed:

Since its establishment, the Committee has consistently drawn attention to Henry VIII clauses. While the explanation put forward in the case of this bill may provide a justification for including these particular provisions, the Committee nevertheless remains concerned whenever subordinate legislation takes precedence over the primary legislation which creates it.

For this reason, the Committee draws Senators' attention to these provisions, as they may be considered to inappropriately delegate legislative powers, in breach of principle 1(a)(iv) of the Committee's terms of reference.⁽³⁵⁾

There are clearly good reasons to reform Australia's international maintenance arrangements and to establish a legislative scheme that gives effect to them. Whether it is appropriate to use only delegated legislation rather than primary legislation or a combination of the two is a separate question.

Endnotes

HA Finlay, RJ Bailey-Harris & MFA Otlowski, Family Law in Australia, 5^th ed, Butterworths, Sydney, 1997.
For example, Austria, Czech Republic, Poland, Eire, Slovak Republic, Sweden, Switzerland.
Attorney-General's Department, International Child Support Enforcement. Proposed New Treaty Arrangements. Issues Paper, November 1999, p. 5.
Ibid, p. 15.
Ibid, p. 6.
Ibid.
Joint Select Committee on Certain Family Law Issues, Child Support Scheme. An Examination of the Operation and Effectiveness of the Scheme, AGPS, Canberra, November 1994, p. 274.
Issues Paper, op.cit, p. 7.
Paragraph 24(b).
Issues Paper, p. 7.
Second Reading Speech, Child Support Legislation Amendment Bill 2000, Parliamentary Debates (Hansard), House of Representatives, 9 March 2000, p. 14023.
These include international judicial and administrative co-operation, the status and protection of children, relations between spouses, recognition of companies, and jurisdiction and enforcement of judgments.
As at 27 August 1999-see http://www.hcch.net/e/faq/faq.html
Belgium, Czech Republic, Denmark, Finland, Estonia, France, Germany, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovak Republic, Spain, Sweden, Switzerland, Turkey and the United Kingdom-as at 3 December 1998. See http://www.hcch.net/e/status/stat23e.html
National Interest Analysis, Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, done at the Hague on 2 October 1973.
Ibid.
Ibid.
Ibid.
UNCRAM and bilateral arrangements.
National Interest Analysis, Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance.
Ibid.
Explanatory Memorandum, Child Support Legislation Amendment Bill 2000, p. 3.
Ibid.
Administrative Review Council, Rule Making by Commonwealth Agencies, Report No.35, AGPS, Canberra, 1992, p. 12.
Ibid, p. 14.
Ibid, p.15.
Ibid.
See new subsection 163B(3) of the Child Support (Assessment) Act 1989, new subsection 124A(3) of the Child Support (Registration and Collection) Act 1988, and new subsection 124A(3) of the Family Law Act 1975.
See, for example, Legislative Assembly of Queensland. Scrutiny of Legislation Committee, The Use of 'Henry VIII Clauses' in Queensland Legislation, January 1997. The definition finally adopted by this Committee was that 'A Henry VIII clause is a clause of an Act of Parliament which enables the Act to be expressly or impliedly amended by subordinate legislation or Executive action.' p. 56.
D Pearce & S Argument, Delegated Legislation in Australia, 2^nd ed, Butterworths, Sydney, 1999.
Ibid.
Administrative Review Council, op.cit, p. 18.
Scrutiny of Legislation Committee, op.cit, p. 56.
Ibid.
Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No.3 of 2000, pp. 10-11.

Contact Officer and Copyright Details

Jennifer Norberry
31 March 2000
Bills Digest Service
Information and Research Services

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Published by the Department of the Parliamentary Library, 2000.