Bills Digest No. 123 2003-04
Child Support Legislation Amendment Bill
2004
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 2004
Date Introduced:
31 March 2004
House: House of Representatives
Portfolio: Family and Community
Services
Commencement:
Schedule 1 commences 28
days after the proposed Act receives Royal Assent. Schedule 2
commences on the day when the proposed Act receives Royal Assent.
Schedule 3 commences on various dates (mainly on Royal Assent or 28
days thereafter), except for item 10 which is taken to have
commenced on 30 June 2001.(1)
The Bill amends
the Child Support (Assessment) Act 1989 ( the Assessment
Act ), the Child Support (Registration and Collection) Act
1988 ( the Registration Act ) and the Family Law Act
1975 for four main purposes.
First, the Bill incorporates certain matters
relating to the assessment and collection of child support
presently contained in regulations into the parent Acts. Second,
the Bill refines some provisions to clarify, among other things,
that Australian child support legislation does not apply if both
parents reside outside Australia.
Third, the Bill is designed to improve access
to courts for review of child support decisions. Fourth, the Bill
seeks to address anomalies in the current system or improve aspects
of child support administration , such as giving a Minister a right
to access personal information about a constituent (where the
constituent has expressly or impliedly consented to the Minister
having access to that information for the purpose of responding to
a request for assistance from another member of parliament on
behalf of the constituent).
The Bill also amends section 33 of A New
Tax System (Family Assistance) (Administration) Act 1999 to
provide that the Secretary can take account of a child support debt
in determining that an individual is entitled to be paid a family
tax benefit advance for a standard advance period.
The Bill does not give effect to the recent
recommendations for the revision of the child support scheme
contained in the 2003 report by the House of Representatives
Standing Committee on Family and Community Affairs, Every
picture tells a story: report on the inquiry into child custody
arrangements in the event of family separation).(2)
The Child Support Agency confirms this view.(3)
Primarily, child support in Australia is dealt
with by three Acts (and regulations made to give effect to those
Acts): the Assessment Act, the Registration Act and the Family Law
Act. Whether one or more of these Acts applies is determined by the
circumstances of the case. For example, the Family Law Act will not
apply to most cases (see below).
In short, the Assessment Act applies if the
child for whom child support is payable was born on or after 1
October 1989; if the parents separated after that date; or if a
sibling was born after that date. Among other circumstances, the
Assessment Act does not apply if the child is over 18 years
of age; married or living in a de facto relationship; or is not
present in Australia, ordinarily resident in Australia or in a
reciprocating jurisdiction . The Assessment Act contains a formula
by which the Registrar of Child Support in reality an
administrative officer of the Child Support Agency assesses child
support. It provides mechanisms for seeking internal review of
administrative assessments and for seeking judicial review
(including the power of the court, among other things, to order a
departure from the administrative assessment if in the special
circumstances of the case , the assessment is unjust and
inequitable ; see section 117).
The Registration Act provides for the
registration and collection of child support liabilities. Such
liabilities may arise from administrative assessment of child
support, the registration of a child support agreement (including
an agreement entered into overseas), or a court order. The Child
Support Agency usually collects child support through deductions
from the liable parent s salary or wages. It can also collect
arrears this way. Once a liability is registered, the debt becomes
a debt owed to the Commonwealth. As such, only the Commonwealth
(and not the payee) can commence legal proceedings for the recovery
of the debt. It is important to note that not all child support
payments or arrears are collected under the Registration Act. For
example, a payee who is not in receipt of an income-tested pension
or benefit may elect not to have child support payments
collected under the Act (in which case, the payer makes payments
directly to the payee or to a third party on behalf of the
payee).
Division 7 of Part VII of the Family Law Act
deals with child maintenance orders. Importantly, section 66E
provides that a court must not make or vary a child maintenance
order if an application for administrative assessment of child
support could be made under the Assessment Act. The court may,
however, make or vary a child maintenance order in relation to
those children to whom the Assessment Act does not apply
because they were born before 1 October 1989 ( as a matter of
mathematics, such children would already be 14.5 years old and
over). Further, section 66L of the Family Law Act provides that the
court can make a maintenance order in relation to a child who is
over 18 years of age if the court considers that the maintenance is
necessary:
(a) to enable the child to complete his or her
education; or
(b) because of a mental or physical disability of
the child.
None of the political parties has expressed a
view about the Bill. Further, there has been no press report about
the Bill to date. This is not surprising, given that the proposed
amendments seem to be largely uncontroversial.
Schedule 1 commences 28 days
after the proposed Act receives Royal Assent.
Schedule 1 incorporates into
the Assessment Act, the Registration Act and the Family Law Act
certain matters relating to overseas maintenance arrangements
currently contained in regulations made under those Acts. The
relevant regulations are the Child Support (Assessment)
(Overseas-related Maintenance Obligations) Regulations 2000
and the Child Support (Registration and Collection)
(Overseas-related Maintenance Obligations) Regulations 2000 (
the regulations ).(4) The regulations deal with
Australia s obligations under various international agreements.
The power to make the regulations was
conferred by the Child Support Legislation Amendment Act
2000. That Act amended the Assessment Act, the Registration
Act and the Family Law Act. Some amendments contained in the
Child Support Legislation Amendment Act 2000 are referred
to as Henry VIII clauses , because they provided for the making of
regulations which are inconsistent with the parent Act and provided
that the regulations will prevail to the extent of any
inconsistency with the parent Act.
In parliamentary debate on 10 April 2000
concerning the Child Support Legislation Amendment Bill 2000,
Senator Newman, the then Minister for Family and Community
Services, explained that the Bill was intended to give effect to an
international agreement between Australia and New Zealand about
child support. That agreement was to take effect from 1 July 2000,
but due to pressures on the Office of Parliamentary Counsel, it was
apparently not possible for a Bill to be drafted incorporating the
terms of the agreement. Instead, the plan was to introduce the Bill
enabling the terms of the agreement to be dealt with by
regulations, with another Bill implementing the agreement to follow
later on this year . Senator Newman said:
This bill we are debating tonight was intended to
include the measures that are now going
to be tabled as regulations. But, as most senators would recognise,
there has been huge demands on the Office of Parliamentary Counsel
over the last few months with the pressure of legislation, and they
were unable to complete the work in time for a 1 July start-up for
these measures. The problem was caused by an agreement between our
Prime Minister and the New
Zealand Prime Minister. They had
agreed that the new arrangements would start up on 1
July.
In order to honour that
commitment, Australia
is bringing forward some of the details
by way of regulation. However, we have made it clear that these
measures will be tabled But they will also be brought into the
legislation later in the year. I think that is not an unreasonable
way of proceeding in what is a very tight timeframe not for the
government but for the legislative draftsmen and also for
Australia s reputation in making agreements with heads of other
governments. I think it is a practical solution. These are special
circumstances, it will be for a very short period, until the
legislative draftsmen can get what will come forward as regulations
into an amending bill later on this year.(5)
Many of the proposed amendments contained in
the current Bill refer to an overseas reciprocating jurisdiction .
The term reciprocating jurisdiction means those jurisdictions
specified in Schedule 2 to Child Support (Registration and
Collection) (Overseas-related Maintenance Obligations) Regulations
2000. The list includes many countries, including African
nations such as Kenya and Tanzania; Asian nations such as Malaysia,
Singapore and the Philippines; European nations such as France,
Germany, Spain, Italy and Greece; the United Kingdom; Canada
(except Labrador and Quebec province); New Zealand; the United
States of America; and South American nations such as Chile and
Brazil. Notably, the list does not include the People s Republic of
China, Indonesia, Vietnam, Saudi Arabia, Lebanon, Iran or
Iraq.(6)
Where one parent resides in a reciprocating
jurisdiction, but the other parent resides in Australia, the
Australian child support scheme may still apply. Among other
things, this means that child support may be assessed
administratively under the Assessment Act and/or that child support
may be collected under the provisions of the Registration Act.
Rather than simply relocating whole provisions
intact from the regulations into the child support scheme, the Bill
seeks to amend the existing legislation to extend the operation of
certain provisions to cover overseas child support and/or
maintenance situations. For example, the Bill amends the Assessment
Act to provide that the liability of a parent (the payer) who
resides in a reciprocating jurisdiction does not arise until all
prior requirements (if any) under the applicable international
maintenance arrangement, and under the laws of the reciprocating
jurisdiction, have been complied with (see item
16, which inserts regulation 15 of the Child
Support (Assessment) (Overseas-related Maintenance Obligations)
Regulations 2000 into section 31 of the Assessment Act). The
Bill also seeks to insert whole provisions dealing exclusively with
overseas child maintenance where the terms of the regulations do
not fit conveniently into the existing scheme. For example, the
Bill seeks to amend the Family Law Act to include new sections
dealing with parentage testing for the purposes of an international
agreement or arrangement (item 111); Australia s
obligations under the Agreement between the Government of Australia
and the Government of New Zealand on Child and Spousal Maintenance
signed at Canberra on 12 April 2000 (item 114),
and Australia s obligations under the Agreement between the
Government of the United States of America and the Government of
Australia for the enforcement of Maintenance (Support) Obligations
concluded and entered into force on 12 December 2002 (also
item 114).
The Bill also seeks to refine various
provisions by clarifying the effect of those provisions or by
deleting unnecessary words or concepts. For example, the Bill makes
it clear that at least one parent must reside in Australia for the
Australian child support scheme to apply. It clarifies the role of
overseas authorities where one parent resides in a reciprocating
jurisdiction. It also clarifies how to calculate overseas income
where a payer resides overseas.
While the amendments themselves are
technically complicated (as is the child support scheme generally),
they do not seem to be controversial, and it is thus unnecessary to
discuss them in detail.
Importantly, by items 47 and
116, the Bill repeals subsection 163B(3) of the Assessment
Act and subsection 124A(3) of the Registration Act. The effect of
the repeal is to remove the possibility of making regulations which
are inconsistent with the parent Act and which prevail over the
parent Act to the extent of any inconsistency.
Schedule 2 commences on the
day when the proposed Act receives Royal Assent.
Schedule 2 amends the
Assessment Act and the Registration Act to provide fairer access to
courts and the review process under those Acts.
The Bill amends the Assessment Act to provide
that where the Registrar refuses to accept an application for
administrative assessment of child support and the applicant
objects, either party may apply to a court of competent
jurisdiction if he or she is aggrieved by the decision on the
objection (item 1). Likewise, the Bill provides
that where the Registrar accepts an application for administrative
assessment, and a party objects, either party may apply to a court
of competent jurisdiction if he or she is aggrieved by the decision
on the objection (items 2 4). The effect of these
amendments is to provide that only one party need object to the
Registrar s decision but that both parties are then entitled to
commence legal proceedings. In other words, it streamlines the
review process and minimises the risk of multiple objections and
applications in the same case.
The Bill is also designed to limit a person s
redress to the Child Support Agency where the Assessment Act
provides that person with a right to recourse to litigation (such
as sections 106, 106A and 107). For example, currently
subsection 98X(1) sets out the decisions against which an objection
may be lodged with the Child Support Agency and subsection 98X(2)
provides an exception. Items 5 and 6 expand the
exceptions, thereby reducing redress to the Child Support Agency in
certain circumstances.
Under section 98X (as amended by the Bill),
the exceptions to the provision are that (a) a person may not lodge
an objection to a decision to accept an application for
administrative assessment of child support if the ground of the
person s objection is that the person is not the parent of the
child, and (b) that a person may not object to a decision to refuse
to accept an application for administrative assessment of child
support if the ground of the objection is either that the person
from whom child support is sought is the parent of the child or
that the person who wishes to object is the parent of the child. If
a person is prevented from lodging an objection by
section 98X, then the person may be able to apply to a court
for a declaration under section 106, 106A or 107 or
proposed section 107A (item 17 of Schedule
2).(7)
The amendments also provide (items 14
17) that unless one of the exceptions to section 98X
applies, a person may not apply to a court unless the person has
first objected under section 98X of the Act.
Item 11 inserts
proposed section 98ZCA to provide that where a
person applies to a court for a departure order under section 116
and has also lodged an objection under section 98X, the
Registrar of Child Support is not obliged to consider the objection
unless a court so orders.
Items 22 and 23 make
consequential amendments to the Registration Act to include
reference to proposed section 107A of the Assessment
Act in section 79A of the Registration Act.
Items 1 4, 6 8, and 12 33 of Schedule
3 commence on Royal Assent. Items 5, 9 and
11 commence 28 days after the proposed Act receives Royal
Assent. Item 10 is taken to have commenced on 30
June 2001.
Schedule 3 makes
miscellaneous amendments to the A New Tax System (Family
Assistance) (Administration) Act 1999, the Assessment Act and
the Registration Act.
The Bill amends the A New Tax System (Family
Assistance) (Administration) Act to provide for the recovery of a
child support debt owed to the Commonwealth from the debtor s
family tax benefit advance. In reality, it is rare for a person to
apply for an advance of family tax benefit (although it may depend
on the amount of family tax benefit to which the person is
entitled) it is more likely that a person would apply for an
advance of their own entitlement to a pension or benefit (because
their own pension or benefit is more likely to be a higher amount
of money). It is also unlikely that a person with a child support
debt would be entitled to family tax benefit advance.
However, in the rare case where a person has a
child support debt and applies for a family tax benefit advance,
the proposed amendments to section 33
(contained in items 1 3) provide that the debt may
be deducted from the advance. These proposed amendments bring the
provision in line with amendments made to other family tax benefit
provisions in 2001. Those amendments only permitted the
Commonwealth to recover a child support debt from a person s
periodic family tax benefit payments (not from an advance).
The Bill makes very minor technical amendments
to the Assessment Act. For example, it inserts a definition of
yearly equivalent of the EAWE amount in section 5 (item
4). The term EAWE amount is already defined in section 5
as the estimate of the all employees average weekly total earnings
for persons in Australia [as calculated by the Australian
Statistician]. It would not be difficult to extrapolate from that
definition the meaning of the term yearly equivalent of the EAWE
amount , but presumably it is useful to have the definition
contained in the Act.
The Bill also provides for the backdating of
the assessment of child support where it comes to the attention of
the Registrar that a payer (or liable parent) has another relevant
dependent child who was not taken into account when the assessment
was made. The amendment to paragraph 39(3)(d) in items 6
and 7 provides that if the Registrar becomes aware of the
existence of the other child within 28 days of the notice of the
assessment, then the liable parent is taken to have had the child
when the application for administrative assessment was made
(assuming paragraph 39(3)(c) does not apply). Presently
paragraph 39(3)(d) provides that the liable parent (the payer)
is taken to have the child from the day the notice was given. The
amendment is fairer to the liable parent than the present
provision, because the notice of the assessment may be the first
time the liable parent learns of the child support liability.
Consequently the notice of assessment may provide the first
opportunity for the person to present information to the Child
Support Agency (and to correct information on which the Registrar
based the assessment).
Item 8 corrects a reference
to liable parent in subsection 45A(2). The provision currently
refers to the total amount of losses and outgoings incurred by the
liable parent , but the provision should refer to the total amount
of losses and outgoings incurred by the entitled carer , given that
section 45A deals with the calculation of the entitled carer s
supplementary amount of income.
Items 13 18 amend section 76
by limiting the information which the Registrar must provide to the
parties to an administrative assessment (for example, limited
details about the children of a new relationship who are not the
subject of the assessment). The effect of the amendments is to
protect privacy, but they would also simplify the Registrar s
workload.
Item 21 is one of the more
interesting amendments in the Bill. It replaces section 143 with a
more precisely worded provision to give effect to the decision of
the Full Court of the Family Court of Australia in Child
Support Registrar and Z & T [2002] FamCA
182.(8) Section 143 deals with amounts paid by way of
child support where no liability to pay exists. At first instance,
the trial Judge found that under section 143 (as it currently
stands) a person could seek to recover child support overpayments
from the Registrar, rather than the person on whose behalf the
Registrar collected child support (that is, the payee). The Full
Court allowed an appeal by the Registrar. While the purpose of the
amendment is to clarify, by express words, that the amount may be
recovered from the payee (and not the Registrar), the language used
in the amendment does not make the situation entirely clear it
refers to recovery of the amount from the recipient and not from
the payee (or some other term in the Act used to refer to the
eligible carer).
Items 22 and 23 are also
interesting amendments. They amend section 150 of the Assessment
Act, which deals with secrecy. Item 22 amends
subsection 150(3) to provide that the Secretary may disclose
protected information to a law enforcement officer if the
information concerns a threat by a person to harm himself or
herself seriously . The adverb seriously is not defined. The
Explanatory Memorandum is not entirely clear as to the impetus for
the amendment; self-harm is not an offence, and so it is not clear
why there is a need to report the threat to law enforcement
officers. The second reading speech states that the amendment is to
facilitate police intervention to protect the client.(9)
It may be more appropriate if the amendment were to provide that
the Secretary may disclose the threat to welfare agencies.
Nonetheless, the amendment would seem to be in the public good.
Item 23 amends section 150 to
provide that a person does not commit an offence of communicating
protected information under subsection 150(4) if the communication
of the protected information to the Minister is expressly or
impliedly authorised by the person to whom the information relates
. Again, this seems to be a well-intentioned provision open to
issues of interpretation. The Explanatory Memorandum to the Bill
states that the purpose of the amendment is to allow the disclosure
to portfolio ministers of protected information about child support
clients that is necessary to finalise correspondence and similar
tasks for those clients .(10)
While express authorisation raises little
concern, implied consent is another matter. It may have been less
contentious for the amendment to have referred only to express
consent, because then the consent (and any qualifications on the
consent) could be documented. Questions may be raised about whether
the Minister could receive information which the person himself or
herself was not entitled to receive because of the secrecy
provisions. Further, the Act and the proposed amendment seem to be
silent as to whether the Minister could then communicate the
information to the person or if, for example, authorised by the
Commissioner under subsection 150(7), the Minister could only
communicate the information to a court. Questions may also be
raised as to whether the Minister can receive all information about
the person held by the Child Support Agency or only that
information pertinent to the current request for assistance.
In very large measure, the
Bill is uncontroversial and uncontentious. It
incorporates matters contained in the regulations into the three
main child support Acts. It also clarifies existing provisions and
amends other provisions which experience has proved to be
inoperative or wrong.
There are a few provisions, particularly
those contained in Schedule 3, which are more interesting and may
be more contentious. They may, for example, raise issues of
interpretation. They may also, for example, raise privacy
considerations.
-
This provision is not, however, particularly significant it
amends an earlier revision of the Assessment Act.
-
The report is available electronically at:
http://www.aph.gov.au/house/committee/fca/childcustody/report/fullreport.pdf.
-
See Child Support Amendment Bill introduced into Parliament at:
http://www.csa.gov.au/legal/bill.htm.
-
The regulations are available electronically at:
http://scaleplus.law.gov.au/cgi-bin/download.pl?/scale/data/pastereg/3/1589,
and
http://scaleplus.law.gov.au/cgi-bin/download.pl?/scale/data/pastereg/3/1590.
-
Senator Newman, Minister for Family and Community Services and
Minister Assisting the Prime Minister for the Status Women, Second
reading speech: Child Support Legislation Amendment Bill 2000 ,
Senate, Debates, 10 April 2000, pp.13 708 13, 709.
Available electronically at: http://www.aph.gov.au/hansard/senate/dailys/ds100400.pdf.
-
Schedule 2 (being the list of reciprocating jurisdictions ) is
available electronically at: http://scaleplus.law.gov.au/html/pastereg/3/1590/0/PR000480.htm.
-
Section 106 provides that an unsuccessful care
applicant for administrative assessment may apply to a court for a
declaration; section 106A provides that an
unsuccessful liable parent for administrative assessment may apply
to a court for a declaration; and section 107
provides that a person from whom payment is sought under
administrative assessment of child support may apply to a court for
a declaration. Proposed section 107A (item
17 of Schedule 2) provides for a successful liable parent
applicant for administrative assessment to apply to a court for a
declaration.
-
The judgment is available electronically at: http://www.familycourt.gov.au/judge/2002/pdf/zt.pdf.
-
Larry Anthony, Minister for Children and Youth Affairs, Second
reading speech: Child Support Legislation Amendment Bill 2004 ,
House of Representatives, Debates, 31 March 2004, p. 26
479.
-
Explanatory Memorandum to the Child Support Legislation
Amendment Bill 2004, p. 27.
Morag Donaldson
22 April 2004
Bills Digest Service
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ISSN 1328-8091
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