Alan O'Neill and Child Support Registrar
[2014] AATA 426
[2014] AATA 426
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/4533
2012/4977
2012/5332
Re
Alan O'Neill
APPLICANT
And
Child Support Registrar
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 30 June 2014 Place Adelaide 1. In application 2012/4533, the application for review is dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
2. In application 2012/4977, pursuant to s 25(4A) of the AAT Act, the Tribunal directs that the scope of the hearing and the evidence to be received at the hearing will be limited to the following issues:
(a) The current amount of Mr O’Neill’s registrable maintenance liability for the purposes of s 72E of the Child Support (Registration and Collection) Act 1988 (the Collection Act);
(b) Mr O’Neill’s current financial position and whether his child support liability is completely irrecoverable;
(c) Any arrangements Mr O’Neill has made for discharge of his child support liability;
(d) Matters relevant to the question of whether he should be permitted to leave Australia notwithstanding his child support liability, including:
(i) the nature and purpose of any travel proposed by Mr O’Neill; and
(ii) the relevance of the fact that Mr O’Neill can seek a departure authorisation certificate and the efficacy of this in his circumstances;
(e) The likely impact of any travel proposed by Mr O’Neill on the respondent’s ability to recover the debt;
(f) The matters referred to in s 72I(2) of the Collection Act; and
(g) Any other matters in respect of which leave is given at or before the hearing.
............. [Sgd] ...............................
Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE – Whether first application for review should be dismissed pursuant to s 42B in circumstances where travel dates in the relevant application for a departure authorisation certificate have passed – Whether application futile – Where travel dates in a further application for review are open ended – No utility in undertaking review of both decisions – First application for review dismissed.
PRACTICE AND PROCEDURE – Whether directions should be made pursuant to s 25(4A) limiting the scope of the hearing – Whether Tribunal bound by previous assessments of applicant’s financial position – Whether Tribunal can make findings inconsistent with previous assessments – s 116 certificate determinative of existence of amount of child support liability – Tribunal has no power to amend assessments – Not necessary for Tribunal to review correctness of previous assessments – Directions made limiting the scope of the hearing.
LEGISLATION
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988, ss 37A, 72D(1), 72E, 72I, 72T and 116(2)
Administrative Appeals Tribunal Act 1975, ss 25(4A), 37(2), 38(1) and 42B
CASES
Re O’Neill and Child Support Registrar [2010] AATA 545; (2012) 52 AAR 295
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Henderson and Child Support Registrar [2004] AATA 829
Whittaker v Child Support Registrar [2010] FCA 43; (2010) 264 ALR 473Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIAL
Commonwealth Ombudsman, Child Support Agency: Administration of Departure Prohibition Order Powers, Report No 8 (2009)
Pearce DC, Administrative Appeals Tribunal (3rd ed, LexisNexis Butterworths, 2013)
REASONS FOR DECISION
Deputy President K Bean
30 June 2014
The applicant, Mr Alan O’Neill, is an inventor and the holder of an Australian Distinguished Talent permanent visa, granted in October 2006. He has two children as a result of his relationship with an ex de facto partner.[1] He was first assessed for child support on 28 February 2005 under the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). As at October 2007, he had a child support debt of $9,873.97 (consisting of $9,511.16 maintenance and $362.81 late payment penalty).[2]
[1] Re O’Neill and Child Support Registrar [2010] AATA 545 [1]
[2] Re O’Neill and Child Support Registrar [2010] AATA 545 [1].
Having regard to that debt, on 4 October 2007 a delegate of the Registrar of the Child Support Agency (the Agency) issued a departure prohibition order (DPO) pursuant to s 72D(1) of the Child Support (Registration and Collection) Act 1988 (the Collection Act).[3] The effect of that order was that Mr O’Neill was prevented from leaving Australia, unless the order was revoked or a departure authorisation certificate (DAC) was granted.
[3] Re O’Neill and Child Support Registrar [2010] AATA 545 [2].
Following discussions with Mr O’Neill, on 22 February 2008, a decision was made by an officer of the Agency not to revoke the DPO.
On 29 July 2009, Mr O’Neill filed an application with this Tribunal seeking review of the decision imposing DPO. That application was subsequently amended such that it related to a particular decision not to revoke the DPO and the matter was listed for a hearing. Prior to that final hearing however, an interlocutory hearing was held with a view to clarifying the scope of the hearing and, subsequent to that hearing, certain directions were made by the Tribunal limiting the scope of the hearing and the evidence which would be received at the hearing.
However, before the scheduled final hearing of the matter Mr O’Neill reached an agreement with the Agency and his application was dismissed by consent.
More relevantly to the current matter, on 10 October 2012, Mr O’Neill lodged a further application for review with the Tribunal in relation to two further decisions of the Agency, dated 26 and 27 September 2012 respectively. The first of those decisions was a decision to refuse his application for a DAC which, if issued, would have allowed him to travel overseas notwithstanding the DPO.[4] The second decision of which he sought review was a decision refusing his further application to revoke the DPO issued on 4 October 2007.[5]
[4] 2012/4533, T2/3
[5] 2012/4977, T2/3.
Subsequently, Mr O’Neill made a further application to the Tribunal dated 20 November 2012 in relation to a further decision of the Agency to refuse an application for a DAC, that decision being dated 24 October 2012.[6]
[6] 2012/5332, T2/6.
On 10 December 2012, a lengthy Directions Hearing was held in relation to these three applications, at which a wide-range of issues arising from the applications were canvassed. Those issues included the utility of Mr O’Neill’s first application in relation to a refusal to grant him a DAC, the subject of application number 2012/4533, and whether the applications or one of the applications should be expedited.[7]
[7] Mr O’Neill subsequently indicated that he no longer pressed the application for expedition.
Extensive discussion also took place at the Directions Hearing in relation to issues similar to those which arose in Mr O’Neill’s previous application, the subject of my interlocutory decision in Re O’Neill and Child Support Registrar.[8] Those issues included the scope of the hearing in these applications and whether directions should be made pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), limiting the scope of the hearing and the evidence to be received, of a similar kind to the directions which were made in Mr O’Neill’s previous matter.
[8] [2010] AATA 545.
As it became clear in the course of the Telephone Directions Hearing held on 10 December 2012 that both parties needed the opportunity to formulate further submissions in relation to a number of issues which had arisen, I made directions for the provision and exchange of material by the parties relevantly including the following:
The Tribunal DIRECTS that:
1. On or before 17 December 2012, the applicant is to file and serve any further written submissions directed to the utility of application No.2012/4533 and why that application should remain on foot.
….
3. On or before 15 January 2013, the respondent is to file and serve written submissions in relation to the following issues:
(a)the extent to which the Tribunal is bound by previous assessments as to the applicant’s financial position, including decisions of the SSAT and the Federal Magistrates Court, in the context of the current applications;
(b)whether and for what purposes it is open to the Tribunal to look behind or draw conclusions inconsistent with those assessments, in the context of the current applications; and
(c)the respondent’s position as to application No. 2012/4533, in particular whether that application should be dismissed and, if so, on what basis.
4. On or before 22 January 2013, the applicant is to file and serve any reply to the respondent’s written submissions.
Those directions were subsequently complied with by both parties, however, in the course of my deliberations following receipt of those submissions, I sought further submissions on particular issues relating to questions 3(a) and (b) as described in the directions reproduced above. This ultimately resulted in an interlocutory hearing being held on 25 November 2013, following which yet further submissions were filed by both parties. In the result, the complexity of issues 3(a) and (b) has also delayed my decision in relation to issue 3(c), as it seemed prudent to defer a decision on that question until I had also reached conclusions on issues 3(a) and (b). As it is a discrete and more straightforward issue however, I propose to address issue 3(c) first before proceeding to consider the other two issues.
Later in my Reasons, I will also address the question of whether directions similar to those made in my previous decision Re O’Neill and Child Support Registrar[9] should be made with respect to these applications or any of them. In addition, I will also address Mr O’Neill’s application for an amendment of the T-documents pursuant to ss 37(2) and 38(1) of the AAT Act, in accordance with his contentions as to the scope of the applications and the material which is relevant to them.
[9] [2010] AATA 545.
WHETHER APPLICATION 2012/4533 SHOULD BE DISMISSED
As alluded to above, application 2012/4533 relates to Mr O’Neill’s request for a DAC authorising him to travel to the United States of America (US) to give a deposition in a US court proceeding relating to a patent dispute.[10] His provisional travel dates were from 30 September 2012 to 11 October 2012 and have now long passed. Mr O’Neill’s application for a DAC for this period was refused by letter dated 26 September 2012, and he seeks review of that decision by this Tribunal.
[10] 2012/4533, T14/112, T19/136.
Relevant to the utility of this application is the fact that, as outlined above, Mr O’Neill has also applied in application 2012/5332 for review of a subsequent decision refusing a later application to travel between 15 November 2012 and 30 November 2012, and for a further unspecified period. That application related to his desire to attend the US to give a deposition and for trial.
Relevant legislation
As to the Tribunal’s power to dismiss an application without proceeding to a consideration on the merits, s 42B of the AAT Act provides as follows:
42B Power of Tribunal where a proceeding is frivolous or vexatious
(1)Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2)A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction.
As to the legislative framework governing when a DAC may be given, s 72L of the Collection Act provides as follows:
72L When Registrar must issue departure authorisation certificate
(1)This section applies if a person makes an application under section 72K for a departure authorisation certificate.
(2)The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:
(a) that, if the certificate is issued:
(i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and
(ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and
(b) that it is not necessary for the person to give security under section 72M for the person’s return to Australia.
(3)If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:
(a) the person has given security under section 72M for the person’s return to Australia; or
(b) if the person is unable to give such security, the Registrar is satisfied:
(i)that the certificate should be issued on humanitarian grounds; or
(ii)that refusing to issue the certificate will be detrimental to Australia’s interests.
Consideration
As alluded to above, the respondent submits that application 2012/4533 should be dismissed on the basis that it is futile and therefore lacks utility. The respondent contends that application 2012/4533 raises issues that are identical to those raised by application 2012/5332, except that different travel dates are specified in application 2012/5332. The respondent points to the fact that both specified sets of travel dates have passed, although application 2012/5332 related to an unspecified period and is therefore more open ended as regards the relevant dates. The respondent says:
In this situation, the Respondent submits that there is no utility in the Tribunal undertaking a review of both DAC decisions where the arguments relating to the merits of the issue of a DAC will be identical.[11]
[11] Respondent’s submissions dated 15 January 2013, [6.1(b)], page 16.
The respondent also refers to case law in support of the proposition that the terms of s 42B of the AAT Act are wide enough to permit the Tribunal to dismiss an application which is futile. The respondent further submits:
… (t)here is no possible order that could be made by the Tribunal that could have any practical effect regarding application No. 2012/4533, given that the nominated travel dates have passed. For example, an order that a DAC be issued for the period of 30 September to 11 October 2012 would be of no benefit to the Applicant and, in the Respondent’s view, would be futile.[12]
[12] Respondent’s submissions dated 15 January 2013 [7], page 18.
The respondent goes on to add:
However, application No. 2012/5332 specifies both an open-ended period of travel and a period which has also passed. The Respondent submits that the orders which the Tribunal could make in relation to this review application would not be futile and could encompass future travel dates as specified in the DAC application.[13]
[13] Respondent’s submissions dated 15 January 2013 [8], page 18.
The respondent also contended that “it would be of no utility for the Tribunal to hear both applications”.[14]
[14] Respondent’s submissions dated 15 January 2013 [9], page 18.
For his part, Mr O’Neill concedes that the dates of travel the subject of application 2012/4533 have passed. However, Mr O’Neill contends that there are some important differences between applications 2012/4533 and 2012/5332 which have the consequence that application 2012/4533 should remain on foot. In particular, he points to the fact that application 2012/4533 requested a DAC for provision of a deposition in the US, whereas 2012/5332 also requested a DAC for attendance at trial in the US. Mr O’Neill contends:
The distinction is important because the arguments as regards ‘humanitarian’ and ‘interests of Australia’ are different:
i)for a deposition, the Hague Convention on the Taking of Evidence Abroad provides a legal avenue for the US parties to seek to obtain the deposition from me in Australia, (and it is that avenue that motivates an expedited hearing and was the basis of the refusal)
ii)for attendance at trial in the US, there is no Hague mechanism, nor in fact any other mechanism save the granting of a DAC for such an attendance to be permitted in support of my US legal obligations as an inventor.[15]
[15] Applicant’s submissions dated 19 January 2013.
Mr O’Neill also contends that the Tribunal has power to grant a DAC for different dates than those which were identified in his original application for a DAC. He contends that whilst the respondent insists on applicants providing proposed dates of travel in the context of DAC applications, this is not mandated by the legislation. Mr O’Neill also contends that through its practices and procedures, the Agency artificially and impermissibly restricts the travel dates which can be requested in a DAC, in particular by linking the date of issue of a DAC with the decision and also linking the date specified in the certificate with the “start date” of proposed travel requested by the applicant. Mr O’Neill submits that this practice has the result that an applicant for a DAC inevitably has very little notice of authorisation to travel and that this practice is not mandated by the legislation.
However, at the later Telephone Directions Hearing on 9 May 2013, Ms Linacre for the respondent contended that, as application 2012/5332 relates to open ended dates, the Tribunal could make a decision in the context of that application, which would allow Mr O’Neill to travel on any dates in the future. She contended that in those circumstances, there was no purpose served by application 2012/4533 also remaining on foot.
When pressed to respond to these submissions, Mr O’Neill contended that from his point of view there was utility in 2012/4533 remaining on foot, as that application would allow him to ventilate before the Tribunal the issues referred to above relating to the practices of the respondent in issuing DACs for fixed and closed dates of travel. He said he wishes to have those issues considered and dealt with by the Tribunal and he would not be able to do this if application 2012/4533 was dismissed.
However, as Ms Linacre correctly pointed out in her submissions, it is not part of the Tribunal’s role to address or answer what amounts to an academic question which is not necessary to determine in order to resolve the dispute between the parties. I accept Ms Linacre’s submission that, as the Tribunal could potentially allow Mr O’Neill to travel on any future dates in the context of application 2012/5332, this makes application 2012/4533 superfluous in a practical sense. I also accept Ms Linacre’s submission that Mr O’Neill’s desire to explore and have the Tribunal adjudicate upon the merits of the respondent’s practice of issuing DACs for fixed closed periods is insufficient justification for that matter to remain on foot in circumstances where that application cannot lead to any outcome which would not be open in application 2012/5332.
I have accordingly decided that, as application 2012/4533 has no utility, it is appropriate that I dismiss that application pursuant to s 42B of the AAT Act.
TO WHAT EXTENT IS THE TRIBUNAL BOUND BY PREVIOUS ASSESSMENTS AS TO MR O’NEILL’S FINANCIAL POSITION?
The statutory context
In addition to s 72L of the Collection Act, which I have set out above, the provisions which are relevant in this context include: s 72I which deals with the revocation and variation of DPOs, s 72E which sets out the meaning of “child support liability”, and s 116(2) which relates to evidence of a person’s child support liability. Each of those provisions relevantly provides as follows:
72I Revocation and variation of departure prohibition orders
(1) The Registrar must revoke a departure prohibition order in respect of a person if:
(a) the person no longer has a child support liability; or
(b)the person has a child support liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or
(c)the person has a child support liability, but the Registrar is satisfied that the liability is completely irrecoverable.
(2)However, if the Registrar considers that the person may later become subject to a child support liability in respect of, or arising out of, matters that have occurred, the Registrar must not revoke a departure prohibition order under subsection (1) unless the Registrar is satisfied:
(a)that the liability will be wholly discharged; or
(b)that arrangements satisfactory to the Registrar will be made for the liability to be wholly discharged; or
(c)that the liability will be completely irrecoverable.
(3)The Registrar may also, at the Registrar’s discretion, revoke or vary a departure prohibition order in respect of a person if the Registrar considers it desirable to do so.
(4)The Registrar may revoke or vary a departure prohibition order under subsection (1) or (3):
(a)on application by the person in the approved form; or
(b)on the Registrar’s own motion.
…
72EMeaning of child support liability
For the purposes of this Part, a person has a child support liability if:
(a)the person has a registrable maintenance liability of a kind mentioned in section 17 or 17A, subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and
(b)an amount payable under the registrable maintenance liability is a child support debt; and
(c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.
…
116Evidence
…
(2)The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.
The child support assessment framework
The legislative framework governing child support assessment is conveniently summarised in written submissions filed by the respondent as follows (citations omitted):
4.6Child support assessments are made by the Registrar pursuant to Part 5 of the Assessment Act. The Assessment Act sets out a formula-based administrative assessment of child support. A formula is used to determine the rate of child support unless the assessment is varied by a Court or a change of assessment decision. Six different formulae are set out in the Assessment Act, with most child support matters assessed using Formula 1 (see s 35B).
4.7A parent’s ‘child support income’ is determined as one of the steps in making a child support assessment. Section 41 of the Assessment Act sets out the formulas that are applied to determine a parent’s child support income. Sections 43-47 set out the components of a parent’s child support income. For example, s 43(1) provides that a parent’s adjusted taxable income for a child for a day in a child support period is the total of:
(a) the parent’s taxable income for the last relevant year of income in relation to the child support period;
(b) the parent’s reportable fringe benefits total for that year of income;
(c) the parent’s target foreign income for that year of income;
(d) the parent’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income;
(e) the total of the tax free pensions or benefits received by that parent in that year of income;
(f) the parent’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.
4.8Part 6A of the Assessment Act provides for departures from the administrative assessment of child support (known as ‘departure determinations’) to be made by the Registrar on the application of a person. The changes can be made prospectively or for the period of up to 18 months before the application for the determination is made (s 98C(3B)).
4.9Section 98C(1) relevantly provides:
(1)Subject to this Part, if:
(a) an application is made to the Registrar under section 98B; and
(b) the Registrar is satisfied:
(i)that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii) that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part;
the Registrar may make the determination.
4.10The relevant ‘grounds for departure’ are set out in s 117(2) of the Assessment Act. If the Registrar refuses to make a departure determination, a party may make an objection to the Registrar (item 15, s 80(1) of the Collection Act). A party may then apply to the SSAT for review of the Registrar’s decision on the objection (s 89 of the Collection Act). In cases where the Register (sic) has determined that the matter is too complex for determination under Part 6A of the Assessment Act, an application for a departure from the administrative assessment may be made to the Family Court or the FMC (s 116 of the Assessment Act).
4.11As the above summary of the child support legislation demonstrates, the Assessment Act establishes a detailed statutory framework pursuant to which assessments of child support are made. Determining a parent’s rate of child support requires a multi-step analysis of the matters prescribed in the Assessment Act: for example, assessing the ‘adjusted taxable income’ is an involved process that requires examination of numerous sources of income. Additionally, the legislation establishes multiple avenues by which aggrieved parties can seek to have their child support assessments reviewed, including by making objections to the Registrar at first instance, and by seeking review by the SSAT and the Family Court or the FMC following an objection.[16]
[16] Respondent’s submissions dated 15 January 2013, [4.6] - [4.11], pages 6 and 7.
Previous relevant assessments
As also outlined in the respondent’s written submissions, previous relevant assessments made in relation to Mr O’Neill’s financial position include:
4.1…
(a)numerous decisions made by delegates of the Registrar in relation to setting the Applicant’s rate of child support and decisions refusing to make departures from those administrative assessments of child support, including assessments made on 8 April 2005, 23 October 2006, 28 September 2007, 22 February 2008 and 24 October 2008;
(b)the decision of the Social Security Appeals Tribunal … made on 25 February 2008 refusing to make a departure determination under s 98E of the Child Support (Assessment) Act 1989 ...; and
(c)the decision of the Federal Magistrates Court … setting the Applicant’s child support income at $60,000 for the period 31 October 2008 to 31 December 2009.[17]
[17] Respondent’s submissions dated 15 January 2013, [4.1], pages 5 and 6.
The respondent’s contentions
In the above context, the respondent states:
The Registrar’s assessments and the SSAT and FMC decisions made in relation to the Applicant’s financial position have had the effect of setting the Applicant’s amount of child support at various levels throughout the period of 28 February 2005 to present. On 26 October 2012, a certificate was produced by the Registrar under s 116(2) of the Collection Act in relation to the Applicant’s current child support liability. This certificate sets out that the Applicant had a child support debt of $20,171.64 (plus other penalties of $11,103.04) as at 26 October 2012.[18]
[18] Respondent’s submissions dated 15 January 2013, [12], page 8.
The respondent contends that the determinations made in relation to Mr O’Neill’s financial position as part of the assessment process were undertaken within the context of the Assessment Act framework. Accordingly, the respondent contends that it is beyond the jurisdiction of the Tribunal to reconsider these assessments for the purposes of the present applications before it.[19] The respondent further submits that in any event, it is the evidence relating to Mr O’Neill’s current financial circumstances and his current child support liability that are relevant to determining whether the criteria in ss 72I and 72L of the Collection Act are satisfied.
[19] Respondent’s submissions dated 15 January 2013, [4.13], page 8.
The respondent submits that:
The various determinations made in relation to the Applicant’s finances throughout the history of his case (including the SSAT and FMC decisions) are relevant to the present reviews only in so far as they have operated to set the level of the Applicant’s child support throughout the course of his case which has ultimately led to the existence of a child support liability. This liability is the subject of a s 116(2) certificate, which the Respondent submits the Tribunal should accept as prima facie evidence of the existence and amount of that debt. The fact of the existence of the liability cannot be in issue.[20]
[20] Respondent’s submissions dated 15 January 2013, [4.13], page 8.
The respondent also contends that where Mr O’Neill’s financial circumstances have been the subject of contested proceedings and a decision of the Federal Magistrates Court, “it would be irregular for the Tribunal to come to a different conclusion”.[21]
[21] Respondent’s submissions dated 15 January 2013, [4.14], page 8.
The respondent also relies upon my previous decision in Re O’Neill and Child Support Registrar,[22] where I said:
14. There was no dispute on the material before me that Mr O’Neill continues to have a child support liability within the meaning of s 72E of the Collection Act.
15. If that provision did not exist and the question of whether Mr O’Neill had a child support liability was “at large” and open to be addressed in the context of applying s 72I, there would be considerable force in Mr O’Neill’s submissions. In these circumstances it would be strongly arguable that it would be open to the Tribunal to embark on an inquiry as to whether there was still a child support liability and if so, the extent of this.
16. As contended by the respondent, however, it appears that the purpose of s 72E is to avoid the need for any such inquiry to be made in the context of s 72D or s 72I. It is clear from s 72E that matters of assessment are intended to be dealt with under the Assessment Act and any challenges to assessments made are to be pursued through the avenues provided in that Act. The intention of s 72E is to “deem” a registrable maintenance liability which is a child support debt to be a “child support liability”, for the purposes of s 72D and s 72I. This in turn has the further effect that it is not open to a decision-maker, including this Tribunal, to “look behind” such an assessment in order to determine whether a person has a “child support liability” for the purposes of those provisions.
17. Having regard to the terms of s 72E and the matters to which a decision-maker is required to have regard in s 72D and s 72I, in my view the legislative framework also does not contemplate that a decision-maker will embark upon an investigation of the correctness of assessments which have been made under the Assessment Act for the purpose of determining the reliability of these in the context of considering whether it is desirable to revoke a DPO. Rather, the legislative framework contemplates that debt issues will be dealt with under the Assessment Act but that in the context of applying s 72D and s 72I, the currently applicable child support assessment will be regarded as “final” for the purpose of applying those provisions.
18. For these reasons I have concluded that it is not open to this Tribunal in the context of the current application to “look behind” the child support assessments which have been made in Mr O’Neill’s case … .
[22] [2010] AATA 545 [14] – [18].
The respondent further contends as follows:
The Respondent submits that it would significantly undermine the efficacy of the Assessment Act regime if the previous child support assessments and the findings on which they were based were not accepted by the Tribunal for the purposes of its review processes. The Assessment Act provides for multiple methods of review of these assessments, and indeed the Applicant has had recourse to these appeal methods throughout the history of his dealings with the Registrar (and it is open to him to continue to utilise these appeal methods if he chooses to do so). To treat all these assessments and the findings on which there (sic) were based as inconclusive of the matters that have been considered and decided upon would call into question the finality of these assessments outside the prescribed processes and create significant and unnecessary confusion as to the role of the Tribunal in reviewing decisions under sections 72I and 72L of the Collection Act.[23]
[23] Respondent’s submissions dated 15 January 2013, [4.18], page 10.
Further, in relation to the issue of the recoverability of the child support liability, which is made relevant by s 72I(1)(c) of the Collection Act, the respondent submits that the Tribunal should have regard to Mr O’Neill’s present financial circumstances in determining whether the debt is completely irrecoverable. Accordingly, the respondent contends that it is unnecessary in this context for the Tribunal to examine any previous findings in relation to recoverability of the debt. Similarly, the respondent contends that the question of whether satisfactory arrangements have been made for Mr O’Neill’s child support debt to be “wholly discharged” (s 72I(1)(b)) must be addressed by reference to the current position.
As alluded to above, in the course of my deliberations subsequent to the Directions Hearing of 9 May 2013, and receipt of the parties’ written submissions, certain further issues arose. I wrote to the parties on 25 July 2013 raising a number of issues including the correct construction of s 116 and the extent to which a s 116 certificate was in fact conclusive of Mr O’Neill’s child support liability in the context of these applications.
Following a further Telephone Directions hearing, an interlocutory hearing was subsequently held on 25 November 2013 at which these issues were addressed by both parties. Further written submissions were also filed and served by the respondent dated 23 December 2013, and by Mr O’Neill dated 19 February 2014.
At the interlocutory hearing and in the written submissions subsequently filed, the respondent essentially adhered to the position outlined above.
In particular, the respondent maintained that the Tribunal did not have jurisdiction in the context of this matter to review the relevant assessments of child support liabilities and administrative penalties already made.[24] The respondent also maintained the position articulated in its previous written submissions dated 2 September 2013, that a s 116(2) certificate is prima facie evidence of the matters stated in the certificate, namely in this case that Mr O’Neill has liabilities comprising a child support debt of $20,171.64 and penalties of $11,103.04, and that those liabilities are due and payable.[25] In the submissions filed on 2 September 2013, the respondent stated:
If the applicant had evidence that the matters stated in the s.116(2) certificate were not correctly stated, then he could adduce such evidence and rebut the prima facie evidence status of the matters stated in the certificate. He could, for example, adduce evidence that the stated child support debt was not consistent with the assessments made, or that the penalties stated were not consistent with penalties calculated. He could also, by way of further example, adduce evidence that he had made payments towards extinguishing the debt, such that the total amount stated to be due and payable was not correct.
That the applicant could adduce rebuttal evidence as described in paragraph 10 is consistent with the purpose for which the s.116(2) certificate was issued, namely to identify the extent of the applicant’s registered maintenance liability, which then necessarily confines the matters which can be the subject of rebuttal evidence.
What is not available to the applicant in the present proceedings before the Tribunal is a merits review of the matters which have already been determined by other bodies which have made the findings and assessments which underpin the child support debt and penalties.
It is only the accuracy of the matters stated in the s.116(2) certificate which can be challenged by evidence. If the matters stated in the certificate are wrongly stated, then evidence can be adduced to show the extent to which the matters stated are wrongly stated.
The certificate was issued to identify, without the need for further evidence from the respondent, the amount of the applicant’s registered maintenance liability. If the applicant can show by evidence that the amount stated to be his registered maintenance liability is not in fact his registered maintenance liability, then any error of such matters stated can then be corrected.
Otherwise, any challenge by the applicant to the merits of the assessments is subject to the statutory regime for review … . [26]
[24] Respondent’s further supplementary submissions dated 23 December 2013.
[25] Respondent’s supplementary submissions dated 2 September 2013.
[26] Respondent’s supplementary submissions dated 2 September 2013 at [10] – [15].
In response to an argument put by Mr O’Neill that s 75 of the Assessment Act (which allows the Registrar to amend assessments) allowed the Tribunal to amend previous assessments of his child support liability, the respondent submitted:
Section 75 is a provision giving administrative powers to the Registrar to amend any administrative assessment. The prime purpose of the provision can be seen in section 75(4). Section 75 is a mechanical provision that permits or requires the Registrar to make alterations and additions as the Registrar considers necessary to give effect to the Child Support Assessment Act 1989 (sic) … or the Registration and Collection Act, subject to the restriction of section 35C of the Assessment Act. The requirement to make a change must arise elsewhere; section 75 does not provide a source of power to amend an assessment except as required by other provisions. The provision does not give any jurisdiction to the Administrative Appeals Tribunal. The Section (sic) has no relevance to the matters before the Tribunal. Section 75 does not provide any basis for the Tribunal reviewing the relevant assessments already made.[27]
[27] Respondent’s further supplementary submissions dated 23 December 2013 at [3].
By way of analogy, the respondent also drew attention to s 175 of the Income Tax Assessment Act 1936, which states:
The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.
The respondent also referred to the decision of the High Court in Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 where a majority of the High Court held, as summarised by the respondent (citations omitted):
…
30.1where section 175 is read with ss. 175A and 177(1) it is clear that the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Part IVC of the Administration Act;
30.2in review or appeal proceedings under Pt IVC, the amount and all the particulars of the assessment may be challenged by the taxpayer but with the burden of proof provided in ss 14ZZK and 14ZZO of the Administration Act;
30.3the protection afforded by section 175 of the ITAA 1936 encompasses all errors in the process of assessment such as a failure to take into account a material factor, taking into account an extraneous factor, or an error in the calculation of tax due. Those matters may be challenged only in the context of Part IVC proceedings;
30.4only two categories of jurisdictional error remain outside the scope of s.175 of the ITAA 1936, namely, where a purported assessment is “tentative or provisional”, or where there has been conscious maladministration of the assessment process.[28]
[28] Respondent’s supplementary submissions dated 2 September 2013.
The respondent subsequently pointed out in its written submissions of 23 December 2013 that the comparable provision in the child support statutory regime to s 175 is s 72 of the Assessment Act, which provides as follows:
72 Validity of assessments
Except in an appeal under Part VIIA, or under Subdivision B of Division 3 of Part VIII, of the Registration and Collection Act, the validity of an assessment is not affected because any of the provisions of this Act have not been complied with.
The respondent further submitted in its written submissions of 23 December 2013 that none of the assessments made in this matter were “tentative or provisional” and the question of whether there had been maladministration in the relevant sense was not one for the Tribunal. The respondent submitted:
As is made clear by the High Court in Commissioner of Taxation v Futuris, [2008] HCA 32, maladministration in the sense of a deliberate failure to comply with statutory provisions gives rise to “jurisdictional error and attracts the jurisdiction to issue the constitutional writs” (paragraphs 55 and 56 per Gummow, Hayne, Haydon and Crennan JJ). The Administrative Appeals Tribunal has no judicial review power. The status of the s 116(2) certificate is not a matter to be considered by the Tribunal, and any evidence directed to that issue is objectionable as not relevant to the decisions the subject of review by the Tribunal.[29]
[29] Respondent’s further supplementary submissions dated 23 December 2013 at [6].
Mr O’Neill’s contentions
Mr O’Neill’s response to the respondent’s submissions on these issues is complex and detailed.
First, Mr O’Neill contests what the respondent says about the conclusiveness of the s 116 certificate. He says it is clear from the context in which s 116 appears that the provision is intended to apply in the context of debt collection procedures and not reviews. He also directs attention to reg 11 of the Child Support (Registration and Collection) Regulations 1988, which provides as follows:
11Evidentiary certificates
In an action for the recovery of a debt payable to the Registrar, a certificate signed by the Registrar certifying that:
(a)the person named in the certificate is liable to pay the debt; and
(b)the debt referred to in the certificate is, at the date of the certificate, a debt payable by the person to the Registrar;
is, in the absence of contrary evidence, sufficient evidence of the facts stated in the certificate.
Mr O’Neill also points out that the s 116 certificate is only sufficient evidence “IN THE ABSENSE (sic) OF CONTRARY EVIDENCE”. He further contests the accuracy of the certificate and contends that there is an abundance of contrary evidence which shows that the assessment reflected in the certificate is incorrect.[30]
[30] Applicant’s written submissions dated 8 February 2013, [1A].
Mr O’Neill also disputes the respondent’s contentions that the Tribunal has no jurisdiction to review or look behind the assessments, that it has no power to look behind the correctness of the statements in the assessments, and that the Tribunal has no interest in his financial position at the time of the assessments.
In support of his contentions, Mr O’Neill argues that acceptance of the respondent’s submissions would present significant difficulties for the Tribunal by placing it in “an inappropriate position to undertake a proper merits review in a number [of] circumstances” including:
- where there have been contradictory previous decisions;
- where decisions contain contradictory statements;
- where there are obvious errors in decisions;
- decisions which are clearly incorrect in light of later information; and
- decisions based on predictions where the actual income amounts subsequently become known.[31]
[31] Applicant’s written submissions dated 8 February 2013, [1B].
Mr O’Neill further contends that his current financial position can only accurately be determined by reference to a proper consideration of past events. He also points out that there have been very significant events which in some cases have post-dated decisions on which his current child support liability is based. For example, he refers to settlement of a District Court action relating to division of property with his ex-partner in 2010. He also refers to the fact that his tax position as regards whether or not he was a resident in the United Kingdom was not decided until December 2008. Mr O’Neill also argues there is good evidence that his earning capacity is much less than it has been determined to be in previous decisions, including the decision of Federal Magistrate Brown (as he then was) in 2009.
Mr O’Neill contends that the Tribunal must “act using the latest information as to actual assets and income to establish actual current circumstances, as opposed to determining the imaginary assets and income that the CSA suggests I should now have.”[32]
[32] Applicant’s written submissions dated 8 February 2013,[1E].
Mr O’Neill also argues that, in the context of conducting merits review of DPO and DAC decisions, the Tribunal has power under s 75 of the Assessment Act and s 37A[33] of the Collection Act to correct errors and make amendments to previous assessments based on more up-to-date or accurate information.
[33] This provision requires that where the Registrar amends a child support assessment, the Registrar must also vary the Child Support Register to reflect that amendment.
Mr O’Neill contends that he does not in fact have a child support liability, as the liability arrived at by the respondent has been incorrectly determined, and he wishes the Tribunal to consider for itself whether he has a child support liability. He contends that if the Tribunal does this, it will ultimately conclude that he does not have a child support liability, and be obliged to revoke the DPO.
Mr O’Neill also contends that I should depart from some of the conclusions I reached in my 2010 decision, partly because he now relies upon s 75 of the Assessment Act and s 37A of the Collection Act which I did not consider in that previous decision. In addition, he submits that the position is now different because of the conclusion of the District Court matter and the UK tax investigation, each of which he says occurred outside the 18 month statutory review/amendment period during which he was permitted to challenge the relevant CSA assessments.
Mr O’Neill also contends that the situation now is different from that considered in my 2010 decision because:
There is now specifically a dispute because the liability is ‘at large’ until it is shown to be correct. The legality and size of the liability are in fact both ‘at large’ and the AAT should not proceed to other issues as regards revocation until that matter is determined, or provisionally held up for later confirmation at a hearing. This is because the s 116 certificate exists only subject to a lack of contrary evidence (which I will be providing), because I am specifically claiming that no such legal liability exists, and because Section 72 implies and requires that the liability and incomes be checked. The process of looking at whether the person no longer has a child support liability, specifically involves checking that the liabilities and incomes are correct, and must do so for the reason cited by Kenyon as regards avoiding punitive actions, given the seriousness of the consequences. Even if the liability exists after those matters ‘at large’ are considered, this does not in turn have the further effect of preventing the decision-maker from looking at or behind any such assessment in order to determine whether a person still has a child support liability, as other evidence flows and corrections are made during the hearing. The question is only finally answered once all evidence is considered. It is not a gating test at the start of the hearing, but part of a tick list to be checked at the end of the hearing, and the issue remains ‘at large’ during the hearing. The AAT must go where the evidence naturally and inevitably leads it and so issues of extent are not able to be properly resolved now.[34]
[34] Applicant’s written submissions dated 8 February 2013, [4.4(i)].
Mr O’Neill further contends that the “clarity and magnitude of the errors” should “guide the extent to which the AAT feels it right and proper to look behind decisions and to correct and amend financial records.” He says “Given the need for due process, and the preparatory evidence I have and will produce about my financial circumstances, I feel that it is not appropriate for the AAT to decide the extent at this time.”[35]
[35] Applicant’s written submissions dated 8 February 2013, [4.1].
In relation to s 72E, Mr O’Neill also contends that the existence of s 37A and other provisions of the Collection Act “clearly indicate that the size and nature of the liability referred to in s 72E is a fluid matter.” He goes on to contend that:
If it is fluid, it can change. If it changes then the question is reassessed. If it changes due to a change of an assessment under section 75 or directly through section 37A by the AAT, as driven by the evidence and the needs of the proceeding, then the only time that the check has any merit is at the end, and not the start, of the hearing.[36]
[36] Applicant’s written submissions dated 8 February 2013, [4.4(ii)].
Mr O’Neill also contends that the finality of s 72E is “also undermined by its treatment in the Federal Court in an Appeal of the making of the DPO”.[37] He contends that in that context, the Court may review the assessments on which the child support liability is based.
[37] Applicant’s written submissions dated 8 February 2013, [4.4(ii)].
Mr O’Neill further contends that it would be an odd result if, in circumstances which would not have warranted the granting of a DPO, the Tribunal concluded that the DPO should not be revoked. Accordingly, he contends that the considerations relevant to the making of a DPO are also relevant to whether the DPO should be revoked. He contends:
If in reviewing the background of the making of the DPO, in the face of evidence obtained on my financial history and current financial circumstances, it is clear that the making of the DPO was highly suspect, that should form a proper part of the proceeding. In the presence of legal hysteresis, it must also be noted that the conditions for revoking the DPO would be different, and on literal interpretation are very different, from the conditions for making the DPO (section 72D v 72I) and hence relying on the later to cover issues related to the former is evidently flawed. If they are the same considerations then, the matters to be assessed under desirability are necessarily broad. The CSR cannot clearly have it both ways at the same time, and I hope that the AAT will formally recognize that.[38]
[38] Applicant’s written submissions dated 8 February 2013, [4.4(iii)].
Mr O’Neill also relies upon the decision of the High Court in Shi v Migration Agents Registration Authority[39] for the proposition that the Tribunal is obliged to look at the most up-to-date information in determining the correctness of the decision under review.
[39] (2008) 235 CLR 286; Applicant’s written submissions dated 8 February 2013, [5A].
Mr O’Neill acknowledges that the jurisdiction of the Tribunal in this matter is enabled by s 72T of the Collection Act, which provides as follows:
72T Applications for review of certain decisions
(1)Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar under section 72I, 72L or 72M.
(2)In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
However he contends that:
The scope of the review is not limited to specific subsections of any of 72I, 72L or 72M. The AAT is broadly enabled by any Decision under sections 72I, 72L or 72M and the powers available to it are at least the same powers that are available to the CSR when reviewing such a decision, but in fact include any other power conferred by the enactments of the Child Support Assessment Act and the Child Support Registration and Collections (sic) Act, to be used as the Tribunal sees fit in relation to the reviewable decision.[40]
[40] Applicant’s written submissions dated 8 February 2013, [5B].
Mr O’Neill also relies upon a report of the Commonwealth Ombudsman in 2009, containing the following paragraphs:
1.4 A DPO is a significant restriction on a person’s right to freedom of movement. It is therefore not surprising that the complaints we investigated showed that a DPO can be a powerful incentive for a person to pay their outstanding child support. However, a coercive power—such as the power to make a DPO—is one that must be exercised reasonably. The inappropriate use of a DPO could be oppressive or punitive. These factors, coupled with the CSA’s public statements about its intention to increase the number of DPOs made, led the Ombudsman to conclude that it would be appropriate to initiate a broader investigation into the CSA’s policies and procedures for making DPOs.
…
4.8 However, the CSA’s PI says that rather than simply checking whether a person’s child support account is in arrears, the CSA will ‘ensure the liabilities that have created the debt are correct’, by checking for things such as incomplete CSA action that could affect the debt; whether there are any disputes about the time the children spend with each parent; and whether the income figures used to calculate the assessment are accurate. The submissions indicated that this had been done in only 11 of the 21 cases (and only partially in four of those 11 cases).[41]
[41] Commonwealth Ombudsman, Child Support Agency: Administration of Departure Prohibition Order Powers, Report No 8 (2009) 3, 13.
Mr O’Neill contends that “the checking of taxable and non-taxable incomes, whether actual or formula or derived from capacities to earn, is an inherent part of reviews of section 72I, L and M Decisions. … It is further clear that checking of assessments and of the resulting liabilities, to further verify the correctness and accuracy of liabilities, is also an inherent part of reviews of sections 72I, L and M Decisions.”[42]
[42] Applicant’s written submissions dated 8 February 2013, [5B].
Mr O’Neill also contends that the scheme of the Acts dictates that the Tribunal must have power to correct assessments in the context of reviewing DPO decisions, since otherwise it would be potentially necessary for a person the subject of a DPO to seek simultaneous review by the Federal Court and/or the SSAT, in order to ensure that the assessment questions relevant to the existence of the DPO were also explored.
In support of his other contentions, Mr O’Neill also contends that, despite having pursued all other avenues available to him, it has not been possible for him to obtain a proper determination of his child support liability, partly because numerous decision-makers concluded that his affairs were too complex.[43]
[43] Applicant’s written submissions dated 8 February 2013, [6].
Consideration
Having carefully considered the detailed submissions of both parties in relation to this issue, I have ultimately concluded that the position advanced by the respondent is correct. Notwithstanding the additional matters raised by Mr O’Neill that were not raised in the context of the 2009 matter, I remain satisfied that the position I described in my 2010 decision at [16] – [18] (set out at paragraph 34 above) was correct.
For the reasons given by the respondent, I am satisfied that, for the purposes of proceedings such as these, a s 116 certificate is determinative of the amount of the relevant child support liability, subject to evidence that the certificate does not correctly record the liability determined by the respondent. It follows that it is also determinative of the question of whether a person “no longer has a child support liability” for the purposes of s 72I.
I also accept the submissions of the respondent as to the relevance of s 75 of the Assessment Act and s 37A of the Collection Act. Specifically, I accept that whilst those provisions both allow and require the Registrar to amend administrative assessments, and require the Registrar to alter the Register to reflect such amendments, they give no power to the Tribunal to amend any assessment or make any adjustment to the Register.
As to the relevance of the decision of the High Court in Shi v Migration Agents Registration Authority, in my view that decision does not assist Mr O’Neill. The decision simply confirms that even when considering a cancellation decision, the Tribunal is to make its decision having regard to the state of affairs existing at the time of its decision rather than confining itself to the state of affairs which existed at the time of the decision under review. That decision has little bearing on this matter.
As to the intention of the statutory scheme, I accept the respondent’s submission that subject to it not accurately reflecting the liability which has been determined, in the context of review of decisions relating to DPOs and DACs, a s 116 certificate is intended to be determinative of the existence of the amount of a child support liability. To the extent a person subject to such a liability disputes its correctness, they are obliged to do so via the mechanisms provided in the Assessment Act. In that regard, I note that it was open to Mr O’Neill to further challenge the 2009 decision of Federal Magistrate Brown (as he then was). However he did not appeal that decision within time and was denied leave to do so out of time, partly for the reason that the judge who determined the application, his Honour Justice Strickland, was not able to find that there was a substantial issue to be raised on appeal.[44]
[44] Although the Tribunal has been provided with a copy of the relevant decision, as Mr O’Neill’s name was anonymised in that decision the details of the decision are not reproduced here, having regard to s 121 of the Family Law Act 1975.
I also accept the respondent’s submission that, having regard to the statutory context and the role of the Tribunal, there is no need for the Tribunal to have particular regard to assessments made by different decision-makers for other purposes as to Mr O’Neill’s financial position at any particular point in time. In the context of considering possible revocation of the DPO, aside from the issue of whether he has a child support liability, the main questions for the Tribunal involve whether the child support liability Mr O’Neill has is “completely irrecoverable”, or whether it will be “wholly discharged”. In addressing those issues, it will be necessary for the Tribunal to have regard to the evidence before it as to the position at the current time and it will simply not be necessary for the Tribunal to “review” the correctness of particular conclusions reached by other decision-makers at earlier points in time.
This is particularly the case in circumstances where there have been significant developments since the earlier assessments were made. Those developments may have the result that this Tribunal reaches significantly different conclusions as to Mr O’Neill’s financial situation from those arrived at previously in the context of assessing his child support liability. However it simply will not be necessary for this Tribunal to specifically consider Mr O’Neill’s financial situation at the time of any previous assessment decisions, and nor would it be appropriate for the Tribunal to do so in the context of this matter.
WHETHER AND FOR WHAT PURPOSES IS IT OPEN TO THE TRIBUNAL TO LOOK BEHIND OR DRAW CONCLUSIONS INCONSISTENT WITH PREVIOUS ASSESSMENTS?
I should acknowledge that to a large extent this issue is similar to that addressed immediately above, though framed in a slightly different way. For that reason, many of the parties’ submissions potentially related to both issues. However, there were some aspects of the respondent’s submissions in particular which I understood to be directed more specifically to this issue.
The respondent’s contentions
Consistently with its submissions directed to the previous issue, the respondent also contends in this context that the Tribunal has no jurisdiction to review previous assessments of Mr O’Neill’s child support income, citing Re Henderson and Child Support Registrar.[45] The respondent contends that the Assessment Act:
... creates multiple avenues for the internal and external review of child support assessments, and the Respondent contends that if the Tribunal were to question the accuracy of these assessments, this would undermine the Assessment Act framework and cast doubt on the finality of decisions made within that framework.[46]
[45] [2004] AATA 829 at [13] – [14].
[46] Respondent’s submissions dated 15 January 2013, [5.3], page 11.
The respondent also relies upon paragraphs 29 and 32 of my 2010 decision, as follows:
29. It follows from my conclusion in relation to Issue (a) that in my view it is not open to this Tribunal to “look behind” the decisions of the Federal Magistrates’ Court or the Social Security Appeals Tribunal in relation to the existence of the child support liability or its current amount.
…
32. It follows that it will be open to Mr O’Neill at the hearing to seek to tender evidence in relation to his current financial circumstances insofar as this is relevant to whether the debt is completely irrecoverable or not. It will also be open to him to seek to tender evidence of any arrangements he has entered into for discharge of the debt.
The respondent has also made specific submissions in this context directed to the considerations to which the Tribunal may have regard in considering whether it is “desirable” to revoke the DPO. As to the matters which are relevant in this context, the respondent says (citations omitted):
Section 72I(3) of the Collection Act provides that the Registrar may, at the Registrar’s discretion, revoke or vary a DPO if the Registrar considers it ‘desirable’ to do so. While the discretion is broadly expressed, it is not entirely at large. A question arises in the context of this discretion as to whether the Tribunal can, in exercising the discretion:
(a)look behind previous child support assessments which have given rise to a liability; and/or
(b)consider the circumstances surrounding the issuance of the DPO at first instance for the purpose of determining the desirability of revoking the DPO.[47]
[47] Respondent’s submissions dated 15 January 2013, [5.8], page 13.
The respondent acknowledges the conclusion in my 2010 decision at paragraph 25, as follows:
25. I accept Mr O’Neill’s submission that s 72I is broad enough to allow the Registrar, or this Tribunal, to revoke a DPO which has been imposed in error. Further, in reviewing the decision not to revoke the DPO, it is open to and appropriate for this Tribunal to consider whether there has been any fundamental error attending the imposition of the DPO such as to render it legally invalid. For example, it would be open to this Tribunal to revoke the DPO if it was satisfied that the decision to impose the DPO had been affected by a failure to accord procedural fairness, the taking into account of irrelevant considerations or the failure to take into account relevant considerations, or an absence of jurisdiction.
However, the respondent further submits that “the extent to which the Tribunal can examine the previous assessments made in relation to the Applicant’s financial situation in the context of determining the validity of the DPO is extremely limited and should be undertaken with great caution.”[48]
[48] Respondent’s submissions dated 15 January 2013, [5.10], page 13.
The respondent relies upon the decision of his Honour Justice Lindgren in Whittaker v Child Support Registrar[49] where his Honour concluded that the Registrar was not subject to a duty to comply with procedural fairness aspects of natural justice before making a DPO. His Honour went on to observe that he considered that Part VA of the Collection Act established a regime where “both the general object and the detail of which are inconsistent with the existence of the duty”.[50]The respondent also points out that on appeal, the Full Court found no error on the part of Lindgren J on this point.
[49] [2010] FCA 43 at [248] – [255].
[50] [2010] FCA 43 at [249].
The respondent refers to my 2010 decision at paragraphs 26 – 28 as follows:
26. However, in the context of an application of this kind, it is neither necessary nor appropriate in my view for the Tribunal to embark on a detailed consideration “on the merits” of whether the DPO should have been imposed at the time at which it was. The decision under review is the decision not to revoke the DPO, not the decision to impose it. Indeed this Tribunal does not have jurisdiction to review the imposition of DPOs.
27. If the imposition of the DPO was not justified, it is likely to be the case in any event that, having regard to an applicant’s current circumstances, the Tribunal will conclude that the DPO should be revoked. As a decision to revoke a DPO cannot be given retrospective effect, providing the DPO was validly imposed, there is little to be gained in practical terms by the Tribunal also considering whether the DPO should have been imposed or whether it should have been revoked earlier.
28. I have therefore concluded that, whilst it is open to Mr O’Neill to argue that the imposition of the DPO was affected by some fundamental legal error of the kind I have referred to, in the context of determining whether the DPO should be revoked (or varied) it is neither necessary nor appropriate for this Tribunal to embark on a full review of the correctness of the decision to impose the DPO, as at the time that decision was made.
However, the respondent submits that, in relation to s 72I(3) “it is not part of the Tribunal’s task to examine whether a DPO has been imposed in error when deciding whether it is desirable to revoke or vary the DPO. This is more properly a matter for a Court to decide where an application is made under s 72Q(1) of the Collection Act against the making of the DPO.”[51]
[51] Respondent’s submissions dated 15 January 2013, [5.13], page 15.
Whilst acknowledging that the Tribunal has power to review and potentially set aside a decision which is invalid,[52] the respondent accordingly contends that in these proceedings the relevant decision under review is the decision not to revoke the DPO and “When determining whether the revocation decision was made in error, it is not necessary (and indeed, may be beyond power) for the Tribunal to take the further step of examining the initial validity of the DPO”.[53]
[52] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167.
[53] Respondent’s submissions dated 15 January 2013, [5.16], page 16.
The respondent further submits that what is “desirable” for the purposes of the exercise of the discretion in 72I(3) of the Collection Act is a matter to be determined having regard to the present circumstances of the applicant rather than the past circumstances surrounding the issue of the DPO, and relies also on paragraphs 23 to 24 of my 2010 decision as follows:
23. Having carefully weighed the above arguments, I have reached the conclusion that, having regard to the principles of statutory construction, and the case law concerning the considerations which are relevant in exercising a statutory discretion, there are limits on what the Tribunal may have regard to in deciding whether it is desirable to revoke a DPO.
24. Whilst on its face s 72I(3) appears to confer quite a wide discretion, I consider that it must nevertheless be construed in context, having regard to the whole of s 72D and s 72I. In my view, having regard to the terms of both provisions, the considerations which are most relevant in determining whether a DPO should be revoked relate to the current circumstances of the person the subject of the DPO. In particular, the current amount of their child support liability, the arrangements the person has made for payment of their child support liability, the extent to which the liability has become irrecoverable, the nature and purpose of the proposed travel and the likely impact of that travel on the capacity of the Registrar to recover the debt. I also consider that the statutory framework contemplates regard being had to the fact that a person subject to a DPO may apply for a DAC in respect of any particular instance of proposed travel.
Mr O’Neill’s contentions
Essentially for the same reasons as those set out above with respect to the previous issue, Mr O’Neill contends that the Tribunal is entitled and indeed obliged to consider whether the DPO was validly and correctly imposed, including by reference to whether he actually had a child support liability at the time the DPO was imposed. He also contends that the Tribunal is entitled and obliged to undertake a comprehensive inquiry into the correctness of all previous assessments of his child support liability, directed at establishing (unconstrained by any previous assessments), what his current child support liability is. Consistently with an internal Procedural Instruction of the Agency to which he makes reference[54], he also contends that before making a decision as to whether the DPO should be revoked, the Tribunal is obliged to thoroughly check the accuracy of the information on which the current assessment of his child support liability is based.
[54] Department of Human Services, PI - Departure Prohibition Orders and Departure Authorisation Certificates, Version 2.0, released 22 December 2006.
Consideration
However, for similar reasons to those I have given for accepting the respondent’s submissions in relation to the previous issue, I have also concluded that there will be no occasion in the context of this matter for the Tribunal to “look behind” or “draw conclusions inconsistent with” previous assessments.
As I have indicated above, the s 116 certificate is effectively determinative in the context of this matter as to the existence of and the amount of Mr O’Neill’s child support liability, subject only to evidence being led by him to demonstrate that the liability reflected in the certificate does not correctly represent the determinations made by the respondent, or that he has subsequently paid some or all of that debt. That being the case, and bearing in mind the limited nature of the issues before the Tribunal insofar as they relate to Mr O’Neill’s financial circumstances, I do not foresee any need for the Tribunal to revisit previous assessments of Mr O’Neill’s child support liability. In my view, the fact that the Agency has a policy and/or practice of checking the correctness of the information on which a child support liability is based before issuing a DPO does not have the consequence that it is open to the Tribunal to do the same thing when considering whether to revoke a DPO. As I have indicated above, the Registrar has powers to review and amend assessments which are not shared by the Tribunal. Rather, the role conferred on the Tribunal is a limited one, confined to considering whether, assuming the liability deemed to exist pursuant to ss 72E and 116, circumstances justifying revocation of a DPO under s 72I are made out.
As to the validity of the DPO and the considerations relevant to its issue, I also accept the correctness of the respondent’s submissions. For the reasons the respondent has given, and having reflected further on this issue since my 2010 decision, I accept that the Tribunal does not have power to determine whether the DPO was attended by any legal invalidity. It is well established that the Tribunal has jurisdiction to review a decision which may be invalid.[55] However the Tribunal does not exercise judicial power and it does not follow from that proposition that the Tribunal has power to determine whether the decision under review, or any prior decision, is legally invalid.
[55] See Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 and Pearce DC, Administrative Appeals Tribunal (3rd ed, LexisNexis Butterworths, 2013) at [2.10].
Having regard to the statutory scheme, I also remain unpersuaded that it would be properly open to the Tribunal, in the context of reviewing a decision not to revoke a DPO, to embark on an inquiry as to whether the DPO was correctly or properly imposed. As I observed in my 2010 decision, in the vast majority of cases, this would be unlikely to serve any practical purpose in any event.
It is possible to imagine highly unusual circumstances in which, for example, it came to light that the s 116 certificate on which the decision to issue a DPO was based, wrongly reflected the existence of a child support liability, and where that fact might be relevant to whether the DPO should be revoked. However in most cases it will not be necessary or appropriate for the Tribunal to consider the basis on which the DPO was issued, noting that a person aggrieved by the decision to impose a DPO may seek review of that decision by the Federal Court or Federal Circuit Court of Australia.
As to the considerations which will generally be relevant to whether it is “desirable” to revoke a DPO, I remain of the view that these are as described in my 2010 decision, at [24]. I am also of the view that those are the considerations which are relevant to whether it is desirable that the DPO in this matter be revoked.
CONCLUSION
For the reasons given above, I have concluded that application 2012/4533 should be dismissed pursuant to s 42B of the AAT Act.
With respect to application 2012/4977 which relates to the respondent’s decision not to revoke the DPO, in light of my conclusions set out above, I propose to make directions pursuant to s 25(4A) of the AAT Act similar to those I made in the 2010 matter, limiting the scope of the hearing and the evidence to be received at the hearing.
With respect to application 2012/5332, I note that considerable time has now passed since Mr O’Neill requested the DAC the subject of that application, and the circumstances which led to his request are likely to have changed. Certainly it is my understanding that the urgency which originally attended his request subsequently dissipated. In any event, it is my understanding that the issues canvassed above arose in the context of application 2012/4977 rather than application 2012/5332, in which both parties saw the issues as being more confined. For these reasons, I do not propose to make directions limiting the scope of that matter at this stage, at least pending clarification from Mr O’Neill as to whether he wishes to proceed with the application and, if so, on what basis.
For completeness, in light my conclusions as set out above, I consider the documents and statements lodged by the respondent pursuant to s 37 of the AAT Act in both of the ongoing applications to be adequate. I acknowledge that the letter advising Mr O’Neill of the decision not to revoke the DPO contained very little detail. However when read in conjunction with the submission[56], I consider that reasons adequate for the purposes of s 37(1)(a) have been provided. Similarly, whilst the decision refusing to grant Mr O’Neill a departure authorisation certificate was brief and lacked detail as to the reasons for the refusal, when this is read in conjunction with the submission[57], I consider that reasons which are adequate for the purpose of s 37(1)(a) of the AAT Act have been provided. Accordingly I do not propose to accede to Mr O’Neill’s request that I require the respondent to lodge additional documents or statements pursuant to ss 37(2) or 38(1). I also note in this context that subsequent to filing the s 37 Documents, the respondent has filed several sets of details submissions. Further it will be open to the Tribunal to require the respondent to file particular further material in the event that the Tribunal is satisfied as to the need for this at a later stage of the proceedings.
[56] At pp 141 - 144
[57] At pp 110 – 118.
DECISION
In application 2012/4533, the application for review is dismissed pursuant to s 42B of the AAT Act.
In application 2012/4977, pursuant to s 25(4A) of the AAT Act, the Tribunal directs that the scope of the hearing and the evidence to be received at the hearing will be limited to the following issues:
(a)The current amount of Mr O’Neill’s registrable maintenance liability for the purposes of s 72E of the Collection Act;
(b)Mr O’Neill’s current financial position and whether his child support liability is completely irrecoverable;
(c)Any arrangements Mr O’Neill has made for discharge of his child support liability;
(d)Matters relevant to the question of whether he should be permitted to leave Australia notwithstanding his child support liability, including:
(i)the nature and purpose of any travel proposed by Mr O’Neill;
(ii)the relevance of the fact that Mr O’Neill can seek a DAC and the efficacy of this in his circumstances;
(e)The likely impact of any travel proposed by Mr O’Neill on the respondent’s ability to recover the debt;
(f)The matters referred to in s 72I(2) of the Collection Act; and
(g)Any other matters in respect of which leave is given at or before the hearing.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ...... [Sgd]...........................
Associate
Dated 30 June 2014
Date of hearing 25 November 2013 Date final submissions received 20 February 2014 Applicant In person Counsel for the Respondent Mr S Cole Solicitors for the Respondent Australian Government Solicitor
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