Bailey v Child Support Registrar
[2008] FMCA 1215
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAILEY v CHILD SUPPORT REGISTRAR | [2008] FMCA 1215 |
| PRIVACY – Injunctions – whether information collected by Child Support Agency breaches – Privacy Act 1988, s.14, Principle 1 – information collected for lawful purpose – assessing child support lawful purpose for collecting financial information concerning the parents. CHILD SUPPORT – Operation of scheme – validity of administrative departure provisions – registrar initiated departures – effect of departure determination. CHILD SUPPORT – Operation of scheme – validity of administrative departure provisions – registrar initiated departures – availability of notices requiring information. |
| Privacy Act 1988, ss.14, 98 Child Support (Assessment) Act 1989, ss.4, 35, 63B, 65, 75, 98K, 98S, 161, 117 Administrative Decisions (Judicial Review) Act 1977, s.3, Sch 1 Acts Interpretation Act 1901, ss.13, 15AB |
| Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; [1944] ALR 130; (1944) 17 ALJR 397 Chamberlain & Slade [2008] FMCAfam 37. Hendy v Deputy Child Support Registrar [2001] FamCA 632; (2001) 27 Fam LR 641; (2001) 164 FLR 236 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41 Perryman & Perryman [1993] FamCA 75; (1993) FLC ¶92-433 Re Interlego Ag and Lego Australia Pty Ltd v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348; (1992) 25 IPR 65; (1992) 111 ALR 597; (1993) AIPC 90-956; (1993) ATPR (Digest) 46-098 |
| Applicant: | MR BAILEY |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLG 567 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 June 2008 |
| Date of Last Submission: | 6 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Tulloch |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs to be taxed according to the Federal Court scale.
IT IS NOTED that publication of this judgment under the pseudonym Bailey v Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 567 of 2008
| MR BAILEY |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
This Application was filed on the 9 May 2008 and heard on the 12 June 2008. The applicant brings this Application pursuant to the Privacy Act 1988. He seeks the following Orders:
1.The court grant an injunction restraining the CSR from engaging in further invasions of my privacy;
2.Refund of excess child support, penalties, and court costs paid as a result of illegal RICAT;
3.CSR to provide an amended child support assessment under s.75 of the CSA Act to revert my assessment back to the legal assessment prior to the Part 6A action, and issue a Full Transaction Statement to cement the act.
4.Return all information held by CSA regarding myself, and written guarantee that the CSA will not keep this information in my file;
5.The CSR to pay me damages of $14,000,000 for pain and suffering as a result of his illegal actions.
The proceedings arise as a result of a change to the applicant’s child support assessment in 2001. In January and March 2001, the Child Support Registrar sought financial information from the applicant. On 23 March 2001, the Child Support Registrar forwarded to the applicant a letter setting out a possible change the Registrar was considering to the child support assessment payable by the Applicant, indicating a potential increase from $260.00 per year to $7,827.00 per year. After a process pursuant to Part 6A of the Child Support (Assessment) Act 1989, the Registrar made a determination to increase the child support assessment of the applicant to $4,940.00 per annum. This decision was made on 24 May 2001. The applicant lodged an objection to the decision, which was subsequently disallowed.
The applicant made a complaint to the Privacy Commissioner under the Privacy Act 1988 with respect to the CSA. On 3 February 2004, the Privacy Commissioner wrote to the applicant indicating that the Privacy Commissioner would not make an enquiry into the applicant’s claim. The Privacy Commissioner is not a respondent to the proceedings and no challenge is made to the Commissioner’s rejection of the applicant’s claim under the Privacy Act 1988. Instead, the applicant brings the proceedings against the Child Support Registrar for injunctive relief under s.98 of the Privacy Act 1988.
The applicant also claims that the change of assessment pursuant to Part 6A of the Child Support (Assessment) Act 1989 was unlawful and as a result seeks review pursuant to the Administrative Decisions (Judicial Review) Act 1977.
Interpreting the Legislation
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41, McHugh, Gummow, Kirby and Hayne JJ discussed the approach to be taken to statutory interpretation, saying:
[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (footnotes omitted)
The Child Support (Assessment) Act 1989 is part of a statutory scheme for the administrative assessment and enforcement of child support. The objects of the Child Support (Assessment) Act 1989 are set out in s.4 as:
4[Objects of Act] (1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
(a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
(3) It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a)to permit parents to make private arrangements for the financial support of their children; and
(b)to limit interferences with the privacy of persons.
The Child Support (Assessment) Act 1989 provides a mechanism for the administrative assessment of Child Support. This is achieved by applying a mathematical formula to key items of information about the parents and children. The provisions setting out the formulae and providing for the calculation of an ‘administrative assessment’ are contained in Part 5. As a result, computer generated assessments are able to be created for the hundreds of thousands of children covered by the scheme.
Part 6A of the Act provides an administrative process for departing from the mathematical formulae in cases where there are ‘special circumstances’ as defined in s.117. Effectively, Part 6A provides a mechanism for individual administrative assessment in cases where the formulae do not produce adequate results.
A close reading of Parts 5 and 6A indicates that some care needs to be taken with the phrase ‘administrative assessment’ in the way that it is used in the Act, compared to its more general meaning in discussion about the distinction between administrative and judicial functions. All of the steps taken by the Child Support Agency, whether pursuant to Part 5 or Part 6A must necessarily be the exercise of administrative power pursuant to the legislation, as a result of the separation of powers required by the constitution. However, departure orders made by the Court pursuant to the powers in Part 7 are the exercise of judicial power. Whilst, in a general sense, it can be said that the assessment of child support under the Child Support (Assessment) Act 1989 is a process of administrative assessment of child support, the phrase ‘administrative assessment’ as used in the Child Support (Assessment) Act 1989 has a defined meaning.
An ‘administrative assessment’, as the phrase is used in the Child Support (Assessment) Act 1989 means an assessment issued as a result of steps taken under Part 5 of the Child Support (Assessment) Act 1989 (see s.5).
Part 6A provides a method for departing from the provisions relating to ‘administrative assessment’ if the Registrar makes a determination under that part. An assessment that has issued pursuant to Part 5 of the Act is an ‘administrative assessment of child support’. The Registrar, under Part 6A, may determine to depart from the provisions resulting in an assessment under Part 5. Of course, there are other methods for altering a child support assessment but they are not relevant to this discussion.
The types of determination the Registrar may make are provided for in s.98S, which are largely similar to the types of departure orders a court may make exercising the powers under Part 7.
The mechanism by which a determination of the Registrar under Part 6A is implemented to effect a change in the assessment is provided in s.75 (one of the provisions of Part 5). Section 75 provides:
75 [Amendment of assessment] (1) The Registrar may, at any time, amend any administrative assessment by making such alterations and additions as the Registrar considers necessary to give effect to this Act.
(2) Subsection (1) has effect despite the fact that:
(a) child support has been paid under the administrative assessment; or
(b) the child support period, or the part of the child support period, to which the administrative assessment relates has ended; or
(c) proceedings are pending in a court having jurisdiction under this Act against or in relation to the administrative assessment.
(3) Without limiting subsection (1), the Registrar may amend any administrative assessment for the purpose of:
(a) correcting any error or mistake (whether or not made by the Registrar); or
(b) correcting the effect of any false or misleading statement made to the Registrar; or
(c) giving effect to the happening of a child support terminating event in relation to:
(i) a child; or
(ii) a person who is or was a carer entitled to child support, or a liable parent, in relation to a child; or
(iii) the child, and a person who is or was a carer entitled to child support, and a person who is or was a liable parent, in relation to the child; or
(d) giving effect to the happening of an event or change of circumstances that, under this Act, affects the annual rate at which child support is or was payable; or
(e) giving effect to the acceptance of a child support agreement by the Registrar; or
(f) giving effect to a decision or order of a court having jurisdiction under this Act.
(4) Where a provision of this Act expressly authorises the Registrar to amend an administrative assessment, that provision does not by implication limit the power of the Registrar (whether under this section or otherwise) to amend the assessment.
(5) Except as otherwise expressly provided in this Act, every amended administrative assessment is to be taken to be an administrative assessment for all the purposes of this Act.
Justice Kay considered this mechanism in Perryman & Perryman [1993] FamCA 75; (1993) FLC ¶92-433 where his Honour stated:
[27] I have some difficulty with the concept that one can make an administrative assessment by determining to depart from the provisions of the Act relating to an administrative assessment which it is determined to depart from. The matter is perhaps saved by the provisions of s.75(5). It seems unfortunate that s.75(3) has not been amended to include specific reference to a determination made under Part 6A.
Whilst s.75(3) has not been amended to include specific reference to Part 6A, it does not limit the wide powers given in s.75(1). The effect of s.75(5) is simply to ensure that any amended ‘administrative assessment’ is treated as an ‘administrative assessment’ so that all of the provisions dealing with ‘administrative assessments’ are again available (for example, the departure provisions).
Registrar Initiated Change of Assessment
The applicant argued that s.98K did not authorise the Registrar to initiate a change of assessment application, The relevant section reads:
98K[Registrar may initiate a determination under this Part] (1) If, at any time when an administrative assessment is in force in relation to a child, the Registrar is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child, the Registrar may make a determination under this Part.
Note 1: For the determinations that the Registrar may make under this Part see section 98S.
Note 2: The Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant parties are notified under section 98M with a court’s leave under section 112 (see subsection 98S(3B)).
(2) The parties to the proceedings under this Division are the liable parent and the carer entitled to child support.
I note that pursuant to s.13 of the Acts Interpretation Act 1901 one should not take the heading, marginal notes, or other notes to the section to be part of the Act. However, regard may be had to the additional material for the purpose of interpreting the Act pursuant to s.15AB of the Acts Interpretation Act 1901.
Section 98K provides the Registrar with power to make a determination under s.98S if satisfied of the matters set out therein. The balance of Division 3 of Pt.6A provides a number of processes that the Registrar must engage in (primarily aimed at achieving procedural fairness) before making a determination of the type contemplated in s.98K. It is implicit in Division 3 that the Registrar will from time to time embark upon the processes set out in the division towards exercising the power in s.98K.
The legislation need not have a section specifically stating that the Registrar may consider cases in order to decide whether or not to embark upon an investigatory process to determine whether the case falls within s.98K. Clearly this is one of the purposes for which the Child Support Agency has been established. The administrative work necessary to properly administer the Act necessarily requires the Registrar to turn his or her mind to these questions from time to time having regard to the nature and circumstances of the cases then being administered, and no doubt also having regard to the extent of the resources that Parliament is able to provide to the Child Support Registrar. I reject the argument that the Child Support Registrar cannot initiate such a process unless there is a specific section to that effect, in circumstances where there is a clear power provided to the Registrar and the processes are a necessary prerequisite to the exercise of that power
In the circumstances, I find that the Registrar was authorised to carry out the Registrar-initiated change of assessment function.
Limits on the Registrar’s ability to collect information
The Applicant also argues that there are limits on the capacity of the Registrar to collect information. The Applicant’s starting point for the argument is s.14 of the Privacy Act 1988, Privacy Principle 1, which is in the following terms:
14 [Information Privacy Principles] The Information Privacy Principles are as follows:
Information Privacy Principles
Principle 1
Manner and purpose of collection of personal information
1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:
(a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and
(b) the collection of the information is necessary for or directly related to that purpose.
2. Personal information shall not be collected by a collector by unlawful or unfair means.
The applicant complains that much of the information used in the assessment made by the CSA in his case was collected from third parties, such as banks, which on his argument was contrary to Privacy Principle 1.
The collection of financial information about persons who are paying or receiving child support is a purpose ‘directly related to a function’ of the Child Support Agency, that is assessing and collecting child support for children. Whether the information collected by the Agency for the purpose of the departure process was collected for a purpose which is a lawful purpose depends entirely upon whether or not there is any prohibition in the Act on the Agency collecting the information.
The Applicant’s argument turns upon an interpretation of s.65 of the Act, which is in these terms:
65 [How assessment is to be made] In making an administrative assessment, the Registrar may act on the basis of the documents and information in his or her possession, and is not required to conduct any inquiries or investigations into the matter or to require (whether under this Act or otherwise) the giving of any information or the production of any document.
The section is a lengthy sentence with a number of clauses. The respective arguments of the Applicant and the Agency are best explained by re-stating s.65 with additional punctuation marks to make apparent the different meanings that they each contended. The applicant contends that s.65 should be interpreted as follows:
In making an administrative assessment, the Registrar may act on the basis of the documents and information in his or her possession, and is not:
(a) required to conduct any inquiries or investigations into the matter; or
(b) to require (whether under this Act or otherwise) the giving of any information or the production of any document.
The Child Support Agency contends for an interpretation of the section as follows:
In making an administrative assessment, the Registrar may act on the basis of the documents and information in his or her possession, and is not required:
(a) to conduct any inquiries or investigations into the matter; or
(b) to require (whether under this Act or otherwise) the giving of any information or the production of any document.
The applicant argues that the interpretation contended by the Child Support Agency should be rejected as it would effectively create a section that said that the Child Support Agency is ‘not required to require…the giving of any information’, which is a somewhat inelegant turn of phrase. That aside, the section has meaning (although clearly not plain English), is understandable and grammatically permissible: that is, for example, the Registrar is not obliged to force the production of a document. This interpretation of the section fits with the underlying purpose of the Child Support Scheme, as is apparent from the objects, set out in s.4 (see above).
The interpretation argued for by the Applicant requires that the relevant part of the section be given a meaning that the Child Support Registrar ‘is not to require the giving of any information or the production of any document’ in order to make a child support assessment. It seems incredible that an agency charged with the function of properly assessing an appropriate level of child support in accordance with the objects stated above would then be precluded from requiring the production of information that may be necessary for the proper discharge of the agency’s functions, particularly when specific provision is made in s.161 of the Act for the Agency to serve notices on persons to compel them to produce information to them.
The Applicant argues that the objects of the Act should not be read as recognizing a number of competing considerations that must be balanced but that rather s.4(3)(b) should be given paramountcy, and would therefore support his interpretation of s.65. Section 4(3) is subordinate to the principal object, and the particular objects in s.4(2). It would not be correct to allow s.4(3)(b) to unduly restrict the operation of the Act in achieving the objects of the Act.
However, I do not accept the argument of the Child Support Agency that s.4(3)(b) should be read as referring only to the operation of s.4(3)(a). It appears clear that the intention of Parliament is that the Agency carry out the objects of the Act as best it can whilst balancing the need to minimise interferences with the privacy of those involved in the scheme, not just with respect to agreements.
A further argument put by the applicant is that, as there is specific reference to the Registrar giving a person notice under s.161 in s.63B, s.161 should only be available if it is invoked by another section of the Act. Section 63B is in these terms:
63B [Amendment of assessment based on election if Registrar asks for information supporting estimate] (1) This section allows the Registrar to amend an assessment of child support payable by or to a parent for some days in a child support period if:
(a) the parent has made an election under section 60 relating to the period; and
(b) the Registrar has given the parent a notice under section 161 or subsection 162A(1) or (4) requiring or requesting the parent to:
(i) give the Registrar information; or
(ii) attend before a person and answer questions; or
(iii) produce documents containing information;
relevant to determining the accuracy of an estimate on which the election is based.
(2) If the parent complies with section 161 or subsection 162A(1) or (4) (in relation to the notice), the Registrar may amend the assessment to affect the annual rate of child support payable by or to the parent for the days in the child support period on or after the day the parent complies.
(3) If the parent does not comply with section 161 or subsection 162A(1) or (4) (in relation to the notice), the Registrar may amend the assessment to affect the annual rate of child support payable by or to the parent for the days in the child support period on or after:
(a) the day the election was made; or
(b) if:
(i) before the Registrar gave the notice but after the election was made, the Registrar had given the parent another notice (the earlier notice ) of the kind described in paragraph (1)(b); and
(ii) the parent complied with section 161 or subsection 162A(1) or (4) in relation to the earlier notice;
the day on which the parent complied with section 161 or subsection 162A(1) or (4) in relation to the earlier notice.
(4) This section does not:
(a) affect the operation of section 161 or 162A; or
(b) prevent the Registrar from making a new assessment for part of the child support period.
Note: This section does not limit the power under section 75 to amend assessments (see subsection 75(5)).
Despite the arguments of the applicant, I am not at all persuaded that the specific reference to s.161 in s.63B should be read as in some way restricting the use of s.161 by the Registrar for any other purpose reasonably necessary for the Registrar to carry out his or her functions under the Act. Section 161 is clearly a provision designed to give the Registrar appropriate powers when administering the Act. There is no basis for restricting the use of s.161, and indeed s.63(4) tells against such an interpretation.
Section 65 does not limit the Registrar’s ability to obtain information for the purposes of carrying out his or her functions under the Act, and s.161 of the Child Support (Assessment) Act 1989 is available generally to the Registrar in carrying out his or her functions under that Act and not limited to the functions carried out under s.63B. As a result, s.161 is available to the Registrar when carrying out the functions under Pt.6A. Consequently, this argument does not assist the applicant’s argument as to the effect of s.65.
I therefore find that the information was lawfully obtained for a lawful purpose, namely properly carrying out the functions required by the Child Support (Assessment) Act 1989 and therefore was within the exception of Principle 1 of the Privacy Principles. I therefore find that the Applicant has not established a case for an injunction under s.98 of the Privacy Act 1988.
Effect of Registrar’s Determination under Part 6A
The Applicant argues that a ‘determination’ of the Registrar under Part 6A of the Child Support (Assessment) Act 1989 is nothing more than a determination that the assessment ‘should be departed from’, as there is no provision that actually carries the determination into effect.
The Applicant attempts to draw support for his argument by referring to amendments to s.35, commencing on 1 July 2008, which will specifically add reference to determinations by the Registrar under Part 6A as one of the exceptions to the application of the formula provided for in Part 5 of the Child Support Scheme. Similarly, the applicant refers to amendments to s.61. The Applicant argues that this legislative amendment is in some form an admission by the legislature that the existing provisions do not have the effect argued for by the Child Support Registrar.
The use of amending provisions to assist in interpreting legislation is not unknown. In Re Interlego Ag and Lego Australia Pty Ltd v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348; (1992) 25 IPR 65; (1992) 111 ALR 597; (1993) AIPC 90-956; (1993) ATPR (Digest) 46-098, Gummow J said:
[113] … There is a line of authority that an amendment may be taken into account in determining the scope of the prior legislation, at least to avoid a result which would render the amendment unnecessary, or futile or deficient; see especially Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 at 85-6; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 254-5. But in doing so caution should be exercised; see Pearce, "Statutory Interpretation in Australia", 3rd Ed, 3.26. It is, after all, a curious way of revealing parliamentary intention at the time of passing the earlier provision. As was observed by Viscount Haldane L.C. in Re Samuel [1913] AC 514 at 526:
"It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela, to remove possible doubts."
See also Federal Commissioner of Taxation v Verzyden (1988) 88 ATC 4,205 at 4,210; Downey v Trans Waste Pty Ltd [1991] HCA 11 at [12]; (1991) 172 CLR 167 at 177.
In Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; [1944] ALR 130; (1944) 17 ALJR 397, Williams J said:
In the present case it follows, in my opinion, by necessary implication from the circumstances to which I have referred, that the Federal Court of Bankruptcy is a superior court, and I do not regard the statutory provisions with respect to contempt of court as intended to confer part of the jurisdiction of a superior court on a court intended to be in other respects inferior and therefore prima facie able only to deal with contempt committed in facie curiae (R. v. Lefroy[(1873) L.R. 8 Q.B. 134]), but as inserted, ex abundante cautela , to remove any possibility of doubt as to the scope of the Court's jurisdiction in contempt in a jurisdiction in which this offence is apt to be rife.
It does not appear to me that it is appropriate in the circumstances of this case to draw an inference that Parliament intended the provisions to operate as the applicant argued. Indeed, the whole scheme of the legislation relating to administrative departures was to provide amendments for an administrative process for departures from assessments. There would have been no purpose served in enacting Part 6A unless it had the effect contended for by the respondent. In more recent times Parliament regularly re-draws provisions of acts for ease of understanding and to make acts more cohesive. The number of amendments Parliament now makes ‘out of an abundance of caution’ is so great that they are common events. The fact that a new provision may make a proposition more obvious does not mean necessarily that the proposition was not open on the previous legislation. It appears that the comments of Kay J in Perryman & Perryman provide a foundation for Parliament wishing to act with an abundance of caution.
The Respondent says that the provisions of s.75 are wide enough to enable the Registrar to amend the child support assessment in accordance with any determination that the Registrar makes under Part 6A and that there does not need to be a specific machinery provision directing the Registrar to make such an amendment.
The determinations that may be made under Part 6A are set out in s.98S. Each of the determinations that may be made under s.98S is “a determination varying” an element of the formula or the actual rate of child support. It is apparent from the wording of s.98S that Parliament intended that a determination by the Registrar effect the variation the subject of the determination.
Section 75 of the Act (a provision within Part 5) provides for the Registrar to make ‘such alterations and additions’ to an administrative assessment ‘as the Registrar considers necessary to give effect to this Act.’ Once a determination by the Registrar under Part 6A in the form set out in s.98S has been made, it is clearly necessary for the Registrar to amend the assessment in order to give effect to that determination. If no amendment is made under s.75, then the Registrar would be failing to give effect to Pt.6A of the Act.
Whilst s.75(3) lists a number of specific purposes for which an amendment to an administrative assessment may be made, the section clearly states that it does not limit the broad ambit of s.75(1). Similarly, s.75(4) expressly states that the power to amend an administrative assessment that may be granted elsewhere in the Act does not, by implication, limit the power of the Registrar to amend an assessment under this section. Sections 75(3) and (4) were obviously inserted by Parliament out of an abundance of caution, given the wide terms of s.75(1).
Finally, once an amendment is made under s.75(1) as a result of a determination under Part 6A, the amended administrative assessment is then taken to be ‘an administrative assessment for all the purposes of this Act’, pursuant to s.75(5). Thus, the amended assessment becomes an ‘administrative assessment’ as referred to in Part 5, and potentially the subject of later determinations under Part 6A if that is necessary.
I also note that the issue is the subject of binding authority by the Full Court of the Family Court in Hendy v Deputy Child Support Registrar [2001] FamCA 632; (2001) 27 Fam LR 641; (2001) 164 FLR 236 where the Full Court said:
[63] We are of the view that despite the present wording of s 35, the clear effect of ss 75(1), (4) and (5) is that the Registrar has power to issue an administrative assessment under Part 5 to give effect to a determination for departure made under Part 6A.
I therefore find that s.75 provides the Registrar with power to amend child support assessments to give effect to a determination under Part 6A.
Conclusions
As I have not found a breach of the provisions of the Privacy Act 1988 the applicant has no case for a claim for an injunction or damages under that Act. I note however that even if the applicant had established a breach of the Act his remedies in this Court would have been limited to injunctions under s.98 as any other remedy can only be granted as a consequence of findings made by the Privacy Commissioner.
To the extent that the applicant challenges the process under the Administrative Decisions (Judicial Review) Act 1977 the application should be dismissed as the applicant has not established a ground for review, and in any event decisions of the Registrar under Pt.6A are not open to review under the Administrative Decisions (Judicial Review) Act 1977: see s.3, Sched.1, item (s) and Chamberlain & Slade [2008] FMCAfam 37.
As I have not found any error in the Registrar’s administration of this case under the Act, I must dismiss the applicant’s application.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 1 September 2008
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