Cameron and Child Support Registrar

[2005] AATA 445

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/357

GENERAL ADMINISTRATIVE DIVISION		)
Re		THOMAS CAMERON

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date18 May 2005

PlacePerth

Decision The application for review is dismissed.

...........(sgd S D Hotop)............

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - Jurisdiction – respondent granted application by carer of child for extension of time for lodging objection to departure from administrative assessment of child support payable by applicant – applicant applied to Tribunal for review of that decision – Tribunal has no jurisdiction to decide application for review of decision granting extension of time – application for review dismissed

Child Support (Assessment) Act 1989 (Cth) s98ZE

Allan v Transurban City Link Ltd (2001) 208 CLR 167

Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157

REASONS FOR DECISION

18 May 2005 Associate Professor S D Hotop, Deputy President       

1.      On 7 October 2004 Thomas Cameron (“the applicant”) lodged with the Tribunal an application for review of a decision of  a delegate of the Child Support Registrar (“the respondent”), dated 24 September 2004, granting an application by Donna Smith (“Mrs Smith”) for an extension of time for lodging an objection to a determination of another delegate of the respondent, dated 21 July 2004, that there be a departure from an existing administrative assessment of child support payable by the applicant for a particular child in the care of Mrs Smith.

2.      At a directions hearing held on 19 November 2004 the Tribunal raised the question whether it had jurisdiction to decide the present application for review.  The parties were afforded the opportunity to file and serve written submissions in relation to that matter, and they did so.  The parties were also afforded the opportunity to make oral submissions at a hearing on the question of jurisdiction which was held on 28 January 2005.  At that hearing the applicant appeared in person without representation, and the respondent was represented by Mr J Gherardi, an officer of the Child Support Agency.

The Legislation

3.      The relevant statute is the Child Support (Assessment) Act 1989 (Cth) (“the Act”).

4. Part 4 of the Act provides for the making of an application by a relevant person to the Child Support Registrar (“the Registrar”) for “administrative assessment” of child support for an “eligible child”. Section 30 authorises the Registrar to accept, or to refuse to accept, an application, and the general effect of section 31 is that the liability to pay child support arises on acceptance by the Registrar of an application. Section 33 provides that, if the Registrar refuses to accept an application, the Registrar must immediately notify the applicant in writing, and such notice must include a statement to the effect that, inter alia, the applicant may, subject to the Act, object to the decision. Section 34 provides that, if the Registrar accepts an application, the Registrar must immediately notify the applicant, and the person from whom, or to whom, the application sought payment of child support, in writing, and such notice must include a statement to the effect that, inter alia, that person may, subject to the Act, object to the decision.

5. Part 5 of the Act provides for the making of an administrative assessment of child support. Section 76(1) provides that the Registrar, upon making an administrative assessment, must immediately give written notice of the assessment to the “liable parent”, and to the “carer entitled to child support”. Subsection (2) lists various matters which must be specified in the notice, and subsection (3) provides that the notice must also include, inter alia,

“a statement that specifically draws the attention of the liable parent and the carer entitled to child support to the right … to object, subject to this Act, to particulars of the assessment; …”

and

“a statement that specifically draws the attention of the liable parent and the carer entitled to child support to the right … to apply to the Registrar for a determination under Part 6A having the effect that the provisions of this Act relating to administrative assessment of  child support will be departed from in relation to a child in the special circumstances of the case;”.

6. Part 6A of the Act provides for the making by the Registrar of a determination having the effect that the provisions of the Act relating to administrative assessment of child support will be departed from in relation to a child. Section 98C authorises the Registrar, upon application by either the relevant “liable parent” or the relevant “carer entitled to child support”, to make such a determination. Section 98G requires the Registrar to serve a copy of the application and any accompanying documentation on the other party, and to inform that other party in writing that they may make a representation regarding the application, and, in the event that such a representation is made, to serve a copy of it, and of any accompanying documentation, on the applicant. Section 98JA provides that, if the Registrar refuses to make a determination, the Registrar must serve notice in writing of the decision on the applicant, and such notice must include a statement to the effect that, inter alia, the applicant may, subject to the Act, object to the decision.

7. Section 98K authorises the Registrar of their own motion to make a determination under Part 6A. Section 98M requires the Registrar to give prior notice in writing to both parties and to inform them in writing that they may make a representation to the Registrar. If a party make a representation, the Registrar is required to serve a copy of it, and of any accompanying documentation, on the other party.

8. Section 98S(1) lists the kinds of determinations that the Registrar is authorised to make under Part 6A, including:

“(a)a determination varying the rate of child support payable by the liable parent concerned;

(b)a determination varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;

… ”.

9. Part 6B of the Act is as follows:

“Part 6B—Objection procedure and AAT review of certain decisions

98W  Object and general principle of this Part

(1)       The object of this Part is:

(a)to provide for internal reconsideration of decisions of the Registrar that are reviewable by a court having jurisdiction under this Act; and

(b)to provide for internal reconsideration of certain other decisions of the Registrar, and for AAT review of those decisions.

(2)In general, the Act requires a person who is aggrieved by a decision to use the objections procedure under this Part before using the procedures provided in the Act for a court or the AAT to consider decisions of the Registrar.

98X  Decisions against which objection may be lodged

(1)A person may lodge with the Registrar an objection in writing to any of the following decisions of the Registrar:

(a)to accept an application for administrative assessment under subsection 30(1);

(b)to refuse to accept an application for administrative assessment under subsection 30(2);

(c)as to the particulars of an administrative assessment;

(d)to make or refuse to make a departure determination under Part 6A;

(e)to accept or refuse to accept a child support agreement under section 92 or 98U;

(f)in relation to the remission of a penalty under section 64A.

(2)In spite of paragraph (1)(a), a person may not lodge an objection to a decision to accept an application for administrative assessment under subsection 30(1) if the ground of the person’s objection is that the person is not the parent of the child concerned.

Note:In this case the person may be able to apply to a court under section 107 for a declaration that the applicant for the administrative assessment in question was not entitled to it.

98Y  Who may lodge objection

The persons who may lodge objections against a particular kind of decision are as set out in the table below.

Decisions/objectors
Item	Decision		Who may object
1	To refuse to accept an application for administrative assessment		Applicant
2	To accept an application for administrative assessment		Person from whom or to whom the application seeks payment of child support
3	As to the particulars of an administrative assessment		Carer entitled to child support Liable parent
4	To make or refuse to make a departure determination under Part 6A		Carer entitled to child support Liable parent
5	To accept or refuse to accept a child support agreement		Party to the agreement
6	In relation to the remission of a penalty under section 64A		Person by whom penalty is payable

98Z  Time limits on lodging objection

General rule

(1)An objection to a decision under this Part must be lodged by a person within 28 days after service of notice of the decision on the person unless:

(a)        the decision is a refusal decision; or

(b)one of the grounds of objection to the decision is based on a refusal decision.

Meaning of refusal decision

(2)       A refusal decision is any of the following:

(a)       a decision under Part 6A refusing to make a departure determination;

(b)       a decision under section 60A refusing to accept an estimate election;

(c)a decision under section 66A refusing to grant an application to reduce the annual rate of child support payable to nil;

(d)a decision under section 151C refusing to accept an application to continue an administrative assessment or a child support agreement in force after a child’s 18th birthday.

Rule for refusal decisions

(3)If the person’s objection is to a refusal decision, or to a decision on the ground that a refusal decision was wrongly made in relation to the decision, the objection must be lodged within 28 days after service of notice of the refusal decision concerned on the person.

98ZA  Grounds of objection

An objection must state fully and in detail the grounds of objection relied on.

98ZB  Registrar to serve copy of grounds of objection on other party

(1)       The Registrar must serve a copy of the grounds of objection:

(a)if the person objecting is an applicant for an administrative assessment—on the person from whom, or to whom, the application seeks payment of child support; or

(b)if the person objecting is a carer entitled to child support in relation to an administrative assessment—on the liable parent in relation to the administrative assessment; or

(c)if the person objecting is a liable parent in relation to an administrative assessment—on the carer entitled to child support in relation to the administrative assessment.

(2)A person served with a copy of the grounds of objection may lodge with the Registrar a notice in opposition to, or in support of, the objection.

(3)The notice must be in writing and must be lodged within 28 days after service on the person of the copy of the grounds of objection.

98ZC  Consideration of objections by Registrar

(1)       The Registrar must:

(a)consider an objection lodged under this Part, and any notice of opposition or support lodged under section 98ZB; and

(b)either disallow the objection, or allow it in whole or in part, within 60 days after the objection was lodged.

(2)The Registrar must give written notice of the decision to the person who lodged the objection and to any person who lodged a notice under section 98ZB in relation to the objection.

(3)A contravention of subsection (2) in relation to a decision does not affect the validity of the decision.

98ZD  Application for extension of time

(1)If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.

(2)The application must state the reasons for the person’s failure to lodge the objection within the period required by this Part.

98ZE Consideration of applications for extension of time for lodging objections

(1)If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:

(a)       consider the application; and

(b)either grant or refuse the application within 60 days after the application was lodged; and

(c)if the Registrar grants the application—deal with the objection under section 98ZC.

(2)If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.

(3)The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.

(4)The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision. Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.

(5)A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.

(6)If an application under subsection 98ZD(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.

(7)A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.

(8)In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

98ZF  AAT review of decisions on section 64A objections

(1)A person aggrieved by a decision under subsection 98ZC(1) on an objection to a decision of the Registrar under subsection 64A(4) (remission of penalty) may apply to the AAT for review of the decision.

(2)In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

98ZG  Implementation of decisions

(1)When a decision of the AAT under this Part becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision.

(2)If an appeal is not lodged against the decision of the AAT within the period for lodging an appeal, the decision becomes final at the end of the period.

98ZH  Pending objection not to affect assessment

Subject to section 140 (Stay orders), the fact that an objection is pending under this Part in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person. Any such assessment may be registered under the Child Support (Registration and Collection) Act 1988, and any amounts of child support and other amounts may be recovered in relation to the assessment, as if no objection were pending.

98ZJ  Pending review not to affect section 64A decision

The fact that an objection or a review is pending under this Part in relation to a decision of the Registrar under section 64A does not, in the meantime, interfere with, or affect, the decision, and amounts payable in relation to the decision may be recovered as if no objection or review were pending.”

The Issue

10. The issue for the Tribunal’s present determination is whether it has jurisdiction, pursuant to section 98ZE(7) of the Act, to decide an application for review of a decision by the Registrar granting an application under section 98ZD for an extension of time for lodging an objection under Part 6B.

Consideration

11. It is trite law that the Tribunal does not have a general jurisdiction to review decisions of Commonwealth authorities; it only has jurisdiction to review those decisions in respect of which jurisdiction has been conferred upon it by an “enactment”. Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) relevantly provides:

“25 Tribunal may review certain decisions

(1)       An enactment may provide that applications may be made to the Tribunal:

(a)for review of decisions made in the exercise of powers conferred by that enactment; or

(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

…

(3A)Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:

(a)by any person to whom that power has been delegated;

…

(4)The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

… ”.

12. Section 98ZE(7) of the Act is clearly a provision of an enactment which confers on the Tribunal jurisdiction to review certain decisions of the Registrar or, by reason of section 25(3A)(a) of the AAT Act, of a delegate of the Registrar. The question is whether, on a proper construction of the Act, section 98ZE(7) confers jurisdiction to review a decision to grant, or to refuse, an application under section 98ZD for an extension of time, or only a decision to refuse such an application. That question is to be answered by reference to the subject, scope and purpose of the Act: Allan v Transurban City Link Ltd (2001) 208 CLR 167 at 174.

13. The relevant statutory framework has been set out in paragraphs 4 – 9 above. It will be noticed that provision is consistently made in the Act for the giving of written notice of the relevant action or determination of the Registrar to the relevant party or parties who has, or have, a right to lodge an objection under Part 6B. As regards an objection lodged by a party under Part 6B, provision is made for the other party to be served with a copy of the grounds of the objection and for that party to lodge a notice opposing, or supporting, the objection: s 98ZB. Provision is also made for written notice of the Registrar’s decision on the objection to be given both to the person who lodged the objection and to any person who lodged a notice under section 98ZB in relation to the objection: s 98ZC(2).

14. As regards an application by a party under section 98ZD for an extension of time for lodging an objection, however, there is no provision in the Act for the giving of notice of such an application to the other party. Likewise, as regards a decision by the Registrar to grant or refuse such an application, there is no provision in the Act for the giving of notice of such a decision to the other party. There is, by contrast, provision for the giving of written notice of such a decision to the person who made the application: s 98ZE(3). Subsection (4) of section 98ZE provides:

“The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision.  Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.”

Subsection (7) then provides:

“A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.”

The reference to “the person … aggrieved by the decision” in subsection (4) is clearly a reference to the person who made the application for an extension of time for lodging the objection, and “the decision” referred to is clearly the decision refusing to grant that person’s application for an extension of time. In the Tribunal’s opinion the reference in subsection (7) to “[a] person aggrieved by a decision under subsection (1)” is a reference to the same person as is referred to in subsection (4), namely, the person whose application for an extension of time has been refused by the Registrar, being the only person to whom written notice of that decision (including a statement to the effect that, if aggrieved by that decision, the person may apply to the Tribunal for review of that decision) is required by section 98ZE to be given. In the Tribunal’s opinion those provisions unequivocally evince an intention on the part of the legislature that the only person who may apply under subsection (7) to the Tribunal for review is the person whose application under section 98ZD for an extension of time for lodging an objection has been refused by the Registrar, and that the only kind of decision which the Tribunal is impliedly given the jurisdiction to review by that subsection is a decision of the Registrar refusing to grant a person’s application under section 98ZD for an extension of time for lodging an objection.

15. The following provisions in section 98ZE also indicate that, where the Registrar decides to grant a person’s application for an extension of time, that is the end of the matter as regards that decision, and a review of that decision by the Tribunal is not available (cf Allan v Transurban City Link (above), at 178; Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157 at 167):

·section 98ZE(1)(c) which provides that, if the Registrar grants an application for an extension of time, the Registrar must then deal with the objection under section 98ZC;

·section 98ZE(6) which provides that, if an application for an extension of time under section 98ZD(1) is granted by the Registrar, the person who made the application is, for the purposes of the Act, “taken to have duly lodged the objection to which the application relates”.

[The Tribunal notes that, in the present case, when the delegate of the Registrar decided, on 24 September 2004, to grant Mrs Smith’s application for an extension of time for lodging the relevant objection, the applicant was notified, by letter of the same date, of the grounds of Mrs Smith’s objection in accordance with section 98ZB(1).  The Tribunal understands that a delegate of the Registrar subsequently considered Mrs Smith’s objection and decided to allow it in part, pursuant to section 98ZC(1).]

Conclusion

16. The Tribunal concludes, therefore, that it does not have jurisdiction, pursuant to section 98ZE(7) of the Act, to decide the application for review lodged by the applicant.

Decision

17.     For these reasons the applicant’s application for review is dismissed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President.

Signed: .....................(sgd N Wee)......................

Associate

Date of Hearing  28 January 2005
Date of Decision  18 May 2005
Counsel for the Applicant         In person

Counsel for the Respondent    Mr J Gherardi
  Child Support Agency