Confidential and Social Security Appeals Tribunal
[2008] AATA 1008
•7 November 2008
CATCHWORDS – CHILD SUPPORT – decision was regarding the percentage of child care for a child – Tribunal given jurisdiction to review decisions of SSAT of that sort from 1 July 2008 – SSAT decision made after 1 July 2008 in respect of a child support period before 1 July 2008 – Tribunal has no jurisdiction to review decision.
Acts Interpretation Act 1901 s 22(1)(a)
Administrative Appeal Tribunal Act 1975, ss 25, 29, 29A, 30, 30A and 33
Child Support (Assessment) Act 1989, ss 4, 5, 7A, 8, 25, 29, 30, 31, 48(1), 49, 50, 51, 52, 53-55, 64A, 74A, 98X, 98Y, 98ZC, 98ZE, 98ZF and 161; Parts 3, 4, 5 and 6B
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006, ss 2, Schedule 1, item 1; Schedule 2, items 108, 109, 115 and 117; Schedule 3, items 5, 69 and 77
Child Support (Registration and Collection) Act 1988, ss 3, 4, 26, 54, 68, 79D, 80, 87, 89, 91, 92, 98, 99, 101, 103J, 103K, 103L, 103S, 103VA, 103X, 110D, 110X and 120; Parts III, VII, VIIA and VIII
Social Security (Administration) Act 1995, ss 149, 156, 179 and 185
Social Services Act 1947
Workers Rehabilitation and Compensation Act 1986 (SA) s 110(1)(g)
Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617; [1981] 2 All ER 93
Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617; [1981] 2 All ER 93
Maxwell v Murphy (1957) 96 CLR 261; 31 ALJR 143
Oshlack v Richmond River Council (1998) 193 CLR 72; 72 ALJR 578; 96 LGERA 173; 152 ALR 83
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Shi v Migration Agents Registration Authority [2008] HCA 31
The Queen v Australian Broadcasting Tribunal and Others; Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289; 54 ALJR 314
WorkCover Corporation v BHP Corporation Ltd; Jagermann v WorkCover Corporation (1999) 73 SASR 393
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15
DECISION AND REASONS FOR DECISION [2008] AATA 1008
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/4239
GENERAL ADMINISTRATIVE DIVISION )Re:CONFIDENTIAL
Applicant
And:SOCIAL SECURITY APPEALS TRIBUNAL
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 7 November 2008
Place: MelbourneDecision:The Tribunal does not have jurisdiction to review the decision made by the Social Security Appeals Tribunal on 10 July 2008.
SA Forgie
Deputy President
REASONS FOR DECISION
On 10 July 2008, the Social Security Appeals Tribunal (SSAT) reviewed a decision made by a delegate of the Child Support Registrar (Registrar) regarding the percentage of child care for a child. The period in question occurred before 1 July 2008. The law that was applicable to that period was that in the Child Support (Assessment) Act 1989 (Assessment Act) but it was amended with effect from 1 July 2008 by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Amendment Act). The SSAT had power to review the decision because of the power that it was given under Part VIIA of the Child Support (Registration and Collection) Act 1988 (Registration and Collection Act). It had been given that power from 1 January 2007 as a result of amendments made to the Registration and Collection Act by the Amendment Act. The Amendment Act also amended the Registration and Collection Act by adding s 103VA with effect from 1 July 2008. That section provides that a party “aggrieved by a decision of the SSAT under this Part [VIIA] relating to a party’s percentage of child care for a child” may apply to the Tribunal for review.
The applicant was aggrieved by the SSAT’s decision and the issue was whether the Tribunal has power to review that decision. I have decided that it does not have that power because s 103VA extends only to a decision which the SSAT makes under Part VIIA of the Registration and Collection Act and which relates to a party’s percentage of care for a child. The SSAT’s decision had been made under Part VIIA but it was not a decision relating to a party’s percentage of care for a child. The concept of a person’s percentage of care was a concept introduced in the Assessment Act with effect from 1 July 2008. Administrative assessments relating to child support periods on and after that date would relate to that concept. Those made before that date would have related to a different concept of child support percentages. The two concepts are not the same in either name or substance. The decision the applicant asks the Tribunal to review is a decision that relates to a child support period before 1 July 2008 and so is not a decision of the sort that s 103VA empowers the Tribunal to review.
BACKGROUND
The factual basis on which I have considered the Tribunal’s jurisdiction are drawn from the SSAT’s reasons for decision solely for the purpose of deciding the jurisdictional issue. It does not touch on the substantive issues under consideration in the SSAT or which will be under consideration in this Tribunal. In view of the provisions of s 110X of the Registration and Collection Act, I have omitted any facts that may tend to identify the applicant or any persons related to or associated with him or her.
The applicant and the applicant’s former partner (former partner) are the parents of a child (child), who was under the age of 18 years at all relevant times. From a date in March 2001 to another in July 2003, the Registrar recorded the child as in the applicant and former partner’s shared care. After the date in July 2003, a delegate of the Registrar recorded the child as in the former partner’s major care and the applicant’s substantial care.
On 13 December 2007, a delegate of the Registrar decided to change the record to show the child as being in the former partner’s sole care from January to December 2007 of that year. The applicant objected to the decision on the basis that it was not in accordance with an order made by the Family Court. The Family Court had ordered that the applicant have substantial care of the child. A delegate of the Registrar considered the objection and, on 24 April 2008, allowed it.
The former partner applied to the SSAT for review of the decision. The SSAT found that, during 2007, the child was in the applicant’s care for 60 nights. Applying s 8 of the Assessment Act, the SSAT found that the former partner had sole care of the child in that period. It also found that the Registrar had not been informed and had not become aware of the change in care arrangements leading to a change of the former partner’s categorisation from major care to sole care until a date in December 2007. As s 74A of the Assessment Act provides that the altered annual rate is to apply from the day on which the Registrar was notified or became aware of the change, the SSAT set aside the Registrar’s decision and substituted a decision that, from the date in December 2007, rather than from a date in January 2007, the child had been in the former partner’s sole care. The SSAT made its decision on 10 July 2008 and sent a copy of its reasons to the applicant and the former partner on 23 July 2008.
The applicant has applied for review of the SSAT’s decision but the Tribunal’s Registry wrote to him advising:
“The AAT has the power to review a range of decisions made by Ministers, officers, authorities and other tribunals. However, the AAT can only review a decision if an Act, regulation or other enactment states that the AAT can review the decision. There does not seem to be any section in the Act that gives the AAT power to review the decision referred to in your application.
Before the Tribunal can begin its review you will need to show that the AAT has the power to review the decision. Please contact the AAT within 14 days after receiving this letter and tell us why you think the AAT has the power to review the decision.
If we do not receive a response from you within the period specified above, the AAT is not required to take any further action in relation to your application.
If you need any further information or assistance, please contact the AAT on …”[1]
[1] This letter is a standard letter generated by the Tribunal’s computerised case management system. It is flawed:
(1)The statement that “There does not seem to be any section in the Act that gives the AAT power to review the decision referred to in your application” leaves the reader wondering to which Act the letter refers. The use of the definite article “the” in referring to “the Act’ suggests that reference has been made to an Act somewhere in the letter or that the identity of “the Act” is patently obvious. Neither is the case. In some cases, the legislation is not clear and reference would need to be made to the more general provisions of s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act). This is not such a case, though, and the applicant would have been better assisted had the letter referred to the Assessment Act and the Registration and Collection Act.
(2)In advising the recipient that he or she will need to show that the Tribunal has power to review the decision “Before the Tribunal can begin its review of the decision”, the letter misleads the recipient in a case such as this. That statement would be accurate if the recipient had paid the prescribed fee in respect of the application, if the prescribed fee had already been waived or if no prescribed fee were payable. It is not accurate in a case where a prescribed fee is payable and has neither been paid nor waived. This is a case of the latter sort and the letter should have advised the recipient that the Tribunal will not consider whether his application has been properly made until he or she has shown that the Tribunal has power to review the decision. That follows from the fact that the effect of s 29A of the AAT Act is that an application for review of a decision is not taken to be made unless the prescribed fee, if any, in respect of the application is paid or waived. If the Tribunal decides that it does have jurisdiction, it will often be the case that the application will be out of time by the time the decision is made and the fee paid or waived. The applicant will need to file an application to extend the time for filing the application.
The applicant responded in a letter dated 15 September 2008 advising that an officer from the SSAT Liaison Section of the Child Support Agency (CSA) had advised that the Tribunal was the appropriate authority to review the decision. The SSAT’s letter to the applicant on 23 July 2008 had, however, advised that:
“If you are not satisfied with the Tribunal’s decision, you can appeal on a question of law only to a Court with jurisdiction under the Child Support (Registration and Collection) Act 1988 (such as the Federal Magistrates Court). You should lodge any appeal within 28 days of being notified of the Tribunal’s decision.
The CSA must accept the Tribunal’s decision unless it lodges an appeal. If you have any questions about when the decision will come into effect, please contact your local CSA office.”
I held a hearing to consider any submissions the parties might want to make or matters they might want to raise regarding the Tribunal’s jurisdiction. It was attended by the applicant. The listing notice sent to the SSAT advised that the “Respondent may elect not to participate” and the SSAT made that election.
LEGISLATIVE BACKGROUND
The various pieces of legislation making up the child support package have been extensively amended by the Amendment Act. Of concern to me are the Assessment Act and the Registration and Collection Act. I will briefly set out their relevant provisions before and after their amendment.
The Assessment Act and Registration and Collection Act prior to their amendment by the Amendment Act
The long title to the Assessment Act stated that it was “An Act to make provision for determining the financial support payable by parents for their children, and for other purposes”. Among the objects that the legislation sought to achieve were those of ensuring that the level of financial support to be provided by parents for their children was determined according to their capacity to provide that support, that parents with a like capacity to provide financial support provided like amounts, that the level of financial support provided was determined in accordance with legislatively fixed standards and that persons who provided ongoing daily care for children should be able to have the level of financial support readily determined without the need to resort to court proceedings.[2]
[2] Assessment Act, ss 4(2)(a), (b) and (c)
Detailed provision was made for determination of matters such as the child support period[3] and those children who were eligible children and so children to whom the Assessment Act applies.[4] Provision was also made regarding those who might apply for an administrative assessment of child support, those children in relation to whom an administrative assessment may be made and how they were made.[5] The Registrar had to determine whether an application for an administrative assessment complied with the legislative requirements[6] and, if satisfied that it did so, had to accept the application.[7] If not satisfied, the Registrar had to refuse it.[8] If the Registrar accepted an application then, in summary, child support was payable by the liable parent to the carer entitled to child support. That child support was payable in relation to the days beginning on the day the application was made and ending on the day before the day on which a child support terminating event happened.[9]
[3] Assessment Act, s 7A
[4] Assessment Act, Part 3
[5] Assessment Act, Part 4, Division 1
[6] Assessment Act, s 29
[7] Assessment Act, s 30
[8] Assessment Act, s 30
[9] Assessment Act, s 31(1)
The Registrar had to assess the annual rate of the child support payable by the liable parent to the carer entitled to child support for the child if an application for that assessment were properly made.[10] Part 4A of the Assessment Act set out the circumstances in which the Registrar had to make an administrative assessment. The formulae that the Registrar was required to use in making that assessment were set out in Part 5 of the Assessment Act. The formulae that were adopted did not refer to a “percentage of care for a child” but referred instead to the “child support percentage”. That latter expression was defined in s 5 of the Assessment Act to have “… the meaning given by section 37 (as modified) …” by various sections it identified. Part 5 also directed the Registrar in the way in which the assessment was to be made.
[10] Assessment Act, s 31(2) and see generally Part 4, Division 1
Part 6B of the Assessment Act set out the objection procedure and provided for review of certain decisions by the Tribunal. Section 98X listed the decisions in respect of which a person described in s 98Y might lodge an objection with the Registrar. The Registrar had to consider any application made under s 98ZD to extend the time for lodging an objection.[11] A person aggrieved by the Registrar’s decision on that application could apply to the Tribunal for review of the decision.[12]
[11] Assessment Act, s 98ZE(1)
[12] Assessment Act, s 98ZE(7)
Section 64A provided for the imposition of a penalty on a person who underestimated his or her taxable income.[13] The amount of the penalty was specified in s 64A(2). Under s 64A(4), the Registrar had the power to remit the whole or part of that penalty. If a person objected to the decision under s 64A(4), the Registrar considered the objection under s 98ZC(1). A person aggrieved by the decision under s 98ZC(1) might apply to the Tribunal for review of the decision.[14]
[13] Assessment Act, s 64A(1)
[14] Assessment Act, s 98ZF(1)
The Registration and Collection Act provided for the collection of periodic maintenance payments and for related purposes. The principal objects included those to ensure that children received from their parents the financial support that they were liable to provide and that periodic amounts payable by parents towards the maintenance of their children were paid on a regular and timely basis.[15]
[15] Registration and Collection Act, ss 4(1)(a) and (b)
Part III of the Registration and Collection Act provided for the registration of certain maintenance liabilities. Section 26 required the Registrar to enter particulars of a registered maintenance liability in the Child Support Register. Those particulars had to include particulars of the child support assessment, court order or maintenance agreement under which liability arose. Among other matters, those particulars had to be “… particulars that are, in the opinion of the Registrar, sufficient to adequately identify the basis of the liability”.[16]
[16] Registration and Collection Act, s 26(1)(c)
Only decisions under ss 54(1) and (2) or under s 68 of the Registration and Collection Act were reviewable. All three provisions were concerned with penalty amounts and with their remission. Decisions made under them refusing to remit an amount or only part of an amount were decisions reviewable by the Tribunal. Review was by way of an objection to the decision and a person dissatisfied with the Registrar’s decision on the objection under s 98(1) could apply to the Tribunal for review of that decision.[17] The Tribunal also had jurisdiction to review a decision made by the Registrar under s 101(1) on an application for an extension of time within which to lodge an objection.[18]
[17] Registration and Collection Act, s 99(1)
[18] Registration and Collection Act, s 101(5)
There were other decisions made under the Registration and Collection Act that were reviewable by the courts and not by the Tribunal. These decisions were also the subject of objection procedures. If the Registrar was asked to extend the time for lodgement of an objection, he or she had to consider and decide it under s 91(1). An application could be made to the Tribunal for review of the Registrar’s decision.[19]
The Assessment Act and Registration and Collection Act after their amendment by the Amendment Act with effect from 1 January 2007
[19] Registration and Collection Act, s 91(5)
After their amendment, the basic structure of the Assessment Act and the Registration and Collection Act remained the same but, for the purposes of this matter, with two important changes. I will begin with the changes which were made by Part 1 of Schedule 3 of the Amendment Act and which took effect from 1 January 2007.[20]
[20] Amendment Act, s 2, item 5
One change that was made was the repeal of Part 6B of the Assessment Act, which contained ss 98ZE(7) and 98ZF(1) providing for review by the Tribunal.[21] Also repealed was Part VII of the Registration and Collection Act that had included
[21] Amendment Act, s 3, Schedule 3, item 5
ss 91(5), 99(1) and 101(5).[22] In their place, new Parts VII and VIIA were inserted in the Registration and Collection Act together with a new Part VIII, which provided for review of decisions made by the Registrar. A simplified outline of the provisions in those three Parts is found in s 79D of the Registration and Collection Act:
“Certain persons can object under this Part to certain decisions of the Registrar under the Assessment Act and this Act.
If a person objects to a decision, the Registrar is required to reconsider the decision under this Part [VII].
If a person is dissatisfied with the reconsideration, he or she can apply to the SSAT for review of the decision under Part VIIA of this Act.
A person can appeal from the SSAT to a court on a question of law under Subdivision B of Division 3 of Part VIII of this Act.”
[22] Amendment Act, s 3, Schedule 3, item 69
When it came into operation on 1 January 2007, Part VIIA of the Registration and Collection Act provided for review by the Tribunal on only one occasion. That one occasion related to a decision by the Executive Director of the SSAT to refuse to extend the time to lodge an application.[23]
[23] Registration and Collection Act, s 92(7)
Part 2 of Schedule 3 of the Amendment Act regulated the transition from the review provisions as they were and those that applied after 1 January 2007. Subject to one qualification:
“… Part VII (internal review) of the Registration and Collection Act (as amended by this Schedule [3] applies in relation to a decision made by the Registrar under that Act or the Assessment Act before or after the commencement of this item.”[24]
[24] Amendment Act, s 3, Schedule 3, item 77(1)
The decisions excluded from this general provision were those that met two criteria. The first was that they were decisions in respect of which a person had objected under Part 6B of the Assessment Act or Part VII of the Registration and Collection Act before 1 January 2007.[25] The second was that the Registrar had, before 1 January 2007, made an objection decision under s 98ZC(1) of the Assessment Act or ss 87(1) or 98(1) of the Registration and Collection Act. [26] Those made under s 98(1) had been reviewable by the Tribunal under s 99(1). Decisions made under s 98ZC(1) on an objection to a decision of the Registrar under s 64A(4) had been reviewable under s 98ZF(1). The Assessment Act and the Registration and Collection Act continued to apply in relation to the original decision and the objection decision as they had done before 1 January 2007.[27]
[25] Amendment Act, s 3, Schedule 3, item 77(3)
[26] Amendment Act, s 3, Schedule 3, item 77(3)
[27] Amendment Act, s 3, Schedule 3, item 77(3)
A proceeding before the Registrar that, immediately before 1 January 2007, was pending under Part 6B of the Assessment Act or Part VII of the Registration and Collection Act is taken, as from that day, to be pending under Part VII of the Registration and Collection Act as amended by Schedule 3 of the Amendment Act.[28]
[28] Amendment Act, s 3, Schedule 3, item 77(4)
Where the Registrar had, before 1 January 2007, made a decision under s 98ZE(1) of the Assessment Act or under ss 91(1) or 101(1) of the Registration and Collection Act, those two Acts continue to apply in relation to the Registrar’s decision as they were in force immediately before 1 January 2007.[29]
[29] Amendment Act, s 3, Schedule 3, item 77(5)
The amendments made by the Amendment Act to the Assessment Act and the Registration and Collection Act do not affect any proceedings pending in a court under Part 7 of the Assessment Act or s 88 of the Registration and Collection Act immediately before 1 January 2007.[30] The same applies to proceedings pending in the Tribunal before that date.[31]
The Assessment Act and Registration and Collection Act after their amendment by the Amendment Act with effect from 1 July 2008
[30] Amendment Act, s 3, Schedule 3, item 77(6)(a)
[31] Amendment Act, s 3, Schedule 3, item 77(6)(b)
Schedule 1 of the Amendment Act repealed Part 5 of the Assessment Act and substituted it with “Part 5 – Administrative assessment of child support”.[32] It commenced operation on 1 July 2008.[33] As Part 5 previously did, the substituted Part 5 sets out the formulae for assessing the annual rate of child support payable by a parent for a child. Each formula requires the calculation of, among other figures, each parent’s percentage of child care for the day:
“A person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from …”
the day on which an application is made under s 25 for an administrative assessment of child support or the day on which the Registrar becomes aware of certain specified changes in the percentage of child care.[34]
[32] Amendment Act, s 3, Schedule 1, item 1
[33] Amendment Act, s 2, item 2
[34] Assessment Act s 48(1)
Section 49 provides for the circumstances in which the percentage of care is determined in accordance with an agreement, parenting plan or court order. If there is no agreement, plan or order allowing a percentage to be determined under s 49, the Registrar must determine the percentage, if any, of child care of a child that a parent or non-parent carer of the child is likely to have during the relevant care period.[35] Sections 51 to 55 permit the Registrar to vary the percentage and, in the case of s 52, to permit variation where the percentage has been determined under s 49 on the basis of an agreement, plan or court order.
[35] Assessment Act, s 50
Also with effect from 1 July 2008, Part 1 of Schedule 2 to the Amendment Act inserted ss 103VA and 103X(1)(a)(iii) in the Registration and Collection Act.[36] The practical effect was that these provisions were added to Part VIIA of the Registration and Collection Act. Part VIIA had only been part of that Act with effect from 1 January 2007. Section 103VA(1) provides:
“A party to a review aggrieved by a decision of the SSAT under this Part relating to a party’s percentage of care for a child may apply to the AAT for review of the decision.”
Section 103X(1)(a)(iii) was added to ensure that the SSAT gives the parties written notice that, if its decision relates to a party’s percentage of care for a child, that party may apply to the Tribunal for review of the decision.
[36] Amendment Act, s 3, Schedule 2, items 108 and 109
Part 2 of Schedule 2 to the Amendment Act set out the application and saving provisions. The effect of item 115(1) is that the amendments to the Assessment Act and the Registration and Collection Act “… apply in relation to a day in a child support period, being a day that is, or is after, the day on which this item commences.” The amendments do not affect the continuity of any administrative assessment, in force immediately before 1 July 2008, of the annual rate of child support that is payable by a parent.[37]
CONSIDERATION
[37] Amendment Act, s 3, Schedule 2, item 117(1)(a)
The Tribunal’s jurisdiction
When the Registrar made his decision on 13 December 2007, Part VII, in the form in which it was inserted in the Registration and Collection Act by Schedule 3 of the Amendment Act, had been in operation since 1 January 2007. Part VII provided for the internal review of the Registrar’s decisions by means of an objection process. It is clear from item 77(1) of Part 2 of Schedule 3 of the Amendment Act that Part VII of the Registration and Collection Act applied to the particular decision made by the Registrar whether made before or after 1 January 2007. Therefore, the internal review provisions of Part VII of the Registration and Collection Act applied to a decision made by the Registrar on 13 December 2007.
The applicant lodged an objection with the Registrar under Part VII as the decision of which he sought review was “as to the particulars of an administrative assessment”.[38] The Registrar duly considered it as he was required to do under s 87 of the Registration and Collection Act. When he did so on 24 April 2008 under 87(1) of the Registration and Collection Act, he had to consider its merits on the law governing the making of the administrative assessment. An assessment of the Assessment Act and the Registration and Collection Act in light of the principles set out by the High Court in Shi v Migration Agents Registration Authority[39] leads to the conclusion that the relevant law is that which applied during the child support period. The child support period extended from January to December 2007. Therefore, the law was to be found in the Assessment Act as it applied before the incorporation of the formulae set out in Schedule 1 of the Amendment Act. That incorporation would not occur until 1 July 2008.
[38] Registration and Collection Act, s 80(1), item 11
[39] [2008] HCA 31
Once the Registrar had made the decision on 24 April 2008, the applicant was entitled to apply to the SSAT for review. That is because s 89, under which the right was given, was inserted in the Registration and Collection Act with effect from 1 January 2007. Section 89 comes within Part VIIA of the Registration and Collection Act. It gives, among others, a right to apply to the SSAT for review of an objection decision made under s 87(1). Item 77(2) of Part 2 of Schedule 3 of the Amendment Act makes it clear that Part VIIA applies in relation to a decision made by the Registrar under s 87(1) after 1 January 2007.
The applicant did apply to the SSAT and the application was heard and decided on 10 July 2008 with reasons being sent on 23 July 2008. By the time that the SSAT heard and decided the matter, the law had changed. The change had been implemented with effect from 1 July 2008. It had been effected by repealing and substituting Part 5 of the Assessment Act. Instead of setting out formulae for determining the child support percentage, Part 5 now set out means for determining a party’s percentage of care for a child. Item 115(1) of the application and savings provisions set out in Part 2 of Schedule 2 to the Amendment Act makes it clear that the new Part 5 applies “in relation to a day in a child support period, being a day that is, or is after, the day on which … item [115] commences” i.e. 1 July 2008. It follows from that provision that the repealed provisions of Part 5 apply to matters to be determined by reference to a day in a child support period that is a day before 1 July 2008. That is the approach adopted by the SSAT in its reasons.
Section 103VA was inserted in Part VIIA of the Registration and Collection Act with effect from 1 July 2008. It joined s 92(7) in giving a person a right to apply to the Tribunal for review. Section 92(7) had taken effect from
1 January 2007 and gave a person a right to apply for review in respect of a decision by the SSAT Executive Director to refuse to extend the time in which the person may apply to the SSAT. None of the “application provisions”, and so transitional provisions, in Part 2 of Schedule 3 applies to decisions made by the SSAT or its Executive Director and their review.
In light of that, should the right conferred by s 103VA be read as confined to decisions of the specified type made by the SSAT after 1 July 2008 or as extending to decisions of that specified type made under Part VIIA whether made before or after 1 July 2008? In answering that question, I have started with the presumption that Parliament does not intend to change the law retrospectively. This was explained by Dixon CJ in Maxwell v Murphy[40] when he said:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. …”[41]
[40] (1957) 96 CLR 261; 31 ALJR 143
[41] (1957) 96 CLR 261; 31 ALJR 143 at 267; 144
Conferring, imposing or otherwise affecting rights or liabilities is different from changing the manner in which rights are exercised or enforced and liabilities are enforced. Dixon CJ drew that distinction in Maxwell v Murphy:
“But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such apresumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.”[42]
[42] (1957) 96 CLR 261; 31 ALJR at 267; 144
Section 103VA of the Registration and Collection Act is not concerned with a change in practice and procedure relating to the enforcement of a right already in existence but with the creation of that right. Therefore, if Parliament has not shown an intention to displace the presumption, it application would lead to the conclusion that the right to apply for review given by s 103VA is given only in respect of decisions made after 1 July 2008. That date is chosen because it is the date on which s 103VA came into operation. If a decision were made after that date, the right to make an application would be a consequence of the decision’s having been made and the right’s having been given. If a decision had been made before 1 July 2008, there was no right to apply to the Tribunal as s 103VA was not yet in force. Therefore, to read s 103VA as applying to a decision made before 1 July 2008 would be to alter rights and duties as they existed at a time in the past.
The presumption is just that, though. Its application can be modified or set at nought by the words or intention of the legislation. This is not such a case for the words of s 103VA are not neutral. They refer only to decisions of a certain type made under Part VIIA of the Registration and Collection Act. Part VIIA had been in effect since 1 January 2007 and so any of the SSAT’s decisions on or after that date potentially came within the ambit of s 103VA. Decisions only actually came within its ambit if they met the further description of being decisions “relating to a party’s percentage of child care”. This is the factor that shows that Parliament intended s 103VA to apply to decisions made by the SSAT in relation to an administrative assessment made in relation to a child support period to which the new formulae under Part 5 of the Assessment Act applied. That follows from the fact that Part 5 as amended with effect from 1 July 2008, set out the provisions for determining a party’s percentage of child care. The term “percentage of child care percentage of care has the meaning given by section 48”[43] of the Assessment Act. Section 48 was repealed and substituted with effect from 1 July 2008 by the Amendment Act.[44] As enacted before that date, Part 5 did not make provision for such a determination at all. It set out a formula to determine a child support percentage but regard was only had to the actual percentage of care to the extent that no allowance was made in the formula if a child were in a parent’s care for fewer than 30% of nights. The “application provisions”, or transitional provisions, of the Amendment Act make it clear that the provisions of Part 5 apply in relation to a day in a child support period, being a day that is 1 July 2008 or is a day after 1 July 2008. They do not apply to a child support period that occurs before 1 July 2008.
[43] Assessment Act, s 5(1)
[44] Amendment Act, s 3, Schedule 1, item 1
The practical outcome is that the Tribunal may only review decisions of the SSAT that relate to a child support period that occurs on or after 1 July 2008.[45] My conclusion also leads me to conclude that the Tribunal does not have jurisdiction to review the SSAT’s decision in this case. While it is a decision of the SSAT made under Part VIIA of the Registration and Collection Act, it is not a decision that relates to a party’s percentage of child care as the decision was made in relation to a child support period to which the repealed provisions of Part 5 of the Assessment Act applied.
[45] Some administrative assessments will have been made before 1 July 2008 in relation to a child support period on or after that day. Provided they have been reviewed by the SSAT and relate to a party’s percentage of child care for a child, decisions of that sort are reviewable by the Tribunal: Child Support Reform (New Formula and Other Measures) Regulations 2007, r 12(1)(b).
The SSAT as respondent
There is no question that the SSAT is properly identified as a party to this proceeding. It is the “person”, in the broader sense of that word,[46] who made the decision that is the subject of the application for review made to the Tribunal. Therefore, the SSAT must be a party to a proceeding before the Tribunal for review of that decision for s 30(1)(b) of the AAT Act provides that, among the parties to a proceeding before the Tribunal for a review of a decision is the person who made the decision. The others are the applicant for review, the Attorney-General if intervening in the proceeding under s 30A and any other person made a party to the proceeding after applying under s 30(1A) of the AAT Act.
[46] Acts Interpretation Act 1901, s 22(1)(a)
The fact that the SSAT is a party to a proceeding for review of a decision in the Tribunal is an unusual outcome.[47] But for s 185 of the Social Security (Administration) Act 1999 (SSA Act), the SSAT would also find itself as a party to applications made to the Tribunal for review of decisions made under legislation such as the Social Security Act 1991 (SS Act). Section 179(1) of the SSA Act provides:
“If:
(a)a decision has been reviewed by the SSAT; and
(b)the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the Tribunal for review of the decision of the SSAT.”
[47] If a person were to apply for review of a decision made by the Executive Director of the SSAT under s 92(7) of the Registration and Collection Act, the Executive Director would, as the decision-maker, be the respondent.
Were s 30(1)(b) to apply without modification, the SSAT, as the decision-maker, would be a party. Section 185, however, provides that:
“The AAT Act applies to an application under section 179 for review of a decision as if the reference in s 30(1)(b) of the AAT Act to the person who made the decision were a reference to each party to the review of the decision by the SSAT.”
The parties to a review by the SSAT are identified by s 156(1) of the SSA Act. They are the applicant, the Secretary, any person made a party under s 156(4) and, if the relevant decision was made by the Chief Executive Officer (CEO) of the Commonwealth Services Delivery Agency (i.e. Centrelink) or a delegate, the CEO.[48]
[48] SSA Act, s 156(1)
It might be thought that the reason for making the parties to the review in the Tribunal those who were the parties to the review by the SSAT lies in s 179(2) of the SSA Act. Section 179(2) provides that, for the purposes of an application made to the Tribunal under s 179(1) for review of a decision of the SSAT:
“… the decision made by the SSAT is taken to be:
(a)where the SSAT affirms the decision – that decision as affirmed; and
(b)where the SSAT varies a decision – that decision as varied; and
(c)where the SSAT sets a decision aside and substitutes a new decision – the new decision; and
(d)where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT – the directions or recommendations of the SSAT.”
Section 179(2) is drafted in terms that reflect the SSAT’s powers given by s 149(1) of the SSA Act when reviewing a decision. It must affirm the decision, vary it or set it aside and, if setting it aside, either substitute a new decision or send it back to the Secretary or the CEO, as the case requires, for reconsideration in accordance with any directions or recommendations it might make. The clear intention of Parliament is that the Tribunal review the substantive decision that affects the interests of the person applying for review. That is the decision itself, as varied or as substituted, or the directions or recommendations given by the SSAT to the decision-maker. Parliament clearly did not intend the Tribunal to review the formal decision of the SSAT i.e. to affirm, vary or set aside and substitute a decision with or without directions or recommendations.
The Collection and Registration Act does not contain a provision mirroring that in s 179(2) of the SSA Act even though the powers it is given by s 103S mirror those it is given by s 149(1) of the SSA Act. This omission does not mean, though, that the Tribunal reviews the SSAT’s decision to affirm, vary or set aside and substitute a decision with or without directions or recommendations. It has long been recognised that the Tribunal is generally concerned with the operative decision. In Yolbir v Administrative Appeals Tribunal and Anor,[49] the Full Court of the Federal Court expressly approved a passage from the Tribunal’s decision in
Re Gee and Director-General of Social Services[50] when it said:“… It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person’s interest. See per Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover,… the Tribunal would not be able effectively to use the power conferred by s 43 of the Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. …”[51]
[49] (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 (Davies, Burchett and O’Connor JJ)
[50] (1981) 3 ALD 132; 58 FLR 347 (Davies J, President, and Messrs Cusack and Prowse, Members)
[51] (1981) 3 ALD 132; 58 FLR 347 at 141; 357 cited with approval in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18
There is nothing in the Registration and Collection Act to suggest that this is not the approach to be adopted by the Tribunal in reviewing a decision in response to an application made under s 103VA. Its powers, and indeed duties, under s 43 have not been modified by the Registration and Collection Act. It would be equally inconsistent with the tenor of review under the Registration and Collection Act, as under the Social Services Act 1947 considered in Re Gee, for the Tribunal to concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision.
The fact that the Tribunal is concerned with the operative decision, strongly suggests that it would be more appropriate if the Registration and Collection Act were to provide that the party to the review were someone other than the SSAT. One possibility is that the Registrar should be that “someone”. I will spend a moment setting out some of the consequences if that were to be the case.
The argument for the Registrar to be a party would be that it is the decision of the Registrar, whether as affirmed or as varied or substituted by the SSAT that is the operative decision that is under review. Only if the SSAT makes recommendations or gives directions is the decision of the SSAT under review. Therefore, on review, the Tribunal is generally concerned with the decision made by the Registrar. It is the Registrar who is far better placed than the SSAT to engage in any alternative dispute resolution process, to reach any agreement with the applicant and any other person made a party that may lead to the Tribunal’s making a consent decision and to undertake the duty imposed by s 33(1AA) of the AAT Act to “use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding”. Whether a decision-maker’s endeavours can be described as “best endeavours” will be shaped by a number of things. At the foundation of all of them will be the extent to which the decision-maker is able to assist the Tribunal. The extent will be determined by its ability and so its power to do so.
Part VIIA of the Registration and Collection Act provides for review by the SSAT of certain decisions. Provision is made in Division 4 for hearings of applications for review. Submissions may be made by the Registrar to the SSAT as may other parties to a review. Section 103J(1) provides that “the SSAT Executive Director may ask the Registrar to provide the SSAT with information or a document that the Registrar has and that is relevant to the review of the decision.” Given its placement in Division 4, what is relevant to the review of the decision must be what is relevant to the review of the decision by the SSAT. It cannot be used to extend to what is relevant to review of the decision by this Tribunal. The same outcome is reached under s 103K. That is a power to obtain information from certain persons. It is given to the SSAT Executive Director but only “if it is reasonably necessary for the purposes of a review”.[52] Given its placement in Division 4, that review must again be read as a review of the decision by the SSAT and not by the Tribunal. The same is true of the power given by s 103L(1) to the SSAT Executive Director to ask the Registrar to exercise power under s 161 of the Assessment Act or s 120 of the Registration and Collection Act. The SSAT Executive Director may only make that request if satisfied that a person “has information that is relevant to a review” or “has custody or control of a document that is relevant to a review”.[53]
[52] Registration and Collection Act, s 103K(1)
[53] Registration and Collection Act, ss 103L(1)(a) and (b)
By contrast, the Registrar’s powers are not limited to a review by the SSAT or even for the purpose of making a primary decision. Under s 120(1) of the Collection and Registration Act, the Registrar may “for the purposes of the Act, by notice in writing, require a person” … to furnish information, attend and answer questions or produce documents. That is not to say that the Registrar’s powers are unlimited for they may only be exercised “for the purposes of the Act”. Although that appears quite wide, it does not, for example, necessarily enable the Registrar to exercise the powers in order to achieve the objects in s 3 of the Registration and Collection Act. This is a matter that was considered by Doyle CJ, with whom Bleby and Martin JJ agreed, in WorkCover Corporation v BHP Corporation Ltd; Jagermann v WorkCover Corporation.[54] Their Honours considered s 110(1)(g) of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA), which provides that, “for the purposes of this Act”, an authorised officer of the WorkCover Corporation may require a medical practitioner to answer certain questions. They said:
“The starting point must be the opening words of s 110(1). In my opinion the natural meaning of those words is that the powers are conferred to be used by an authorised officer to enable the Corporation to discharge the various powers and obligations conferred by particular provisions of the Act. In my opinion the powers are not available to be exercised simply because their exercise might advance the objects of the Act. For example, the powers could not be exercised to require a person who has useful ideas about ‘the efficient and effective administration of the scheme’ (see s 2(1)(b) of the Act) to produce any document expressing those ideas or to answer questions about them. Subject to that, in my opinion the natural meaning of s 110(1) is that the powers are available to be exercised when their exercise will assist the Corporation in the discharge of its statutory powers and obligations.
I accept that the powers conferred are to be interpreted bearing in mind that they impinge upon important common law rights and liberties. But in my opinion the conferral of the powers for the purposes of the Act is a clear indication that the powers can be used to assist in the execution of powers conferred by and duties imposed by particular provisions of the Act, as distinct from matters that might be said to be done in the execution of the more general objects of the Act.”[55]
[54] (1999) 73 SASR 393
[55] (1999) 73 SASR 393 at 397
Applying these principles to the interpretation of the expression “for the purposes of this Act” in s 120 of the Registration and Collection Act, it is arguable that the Registrar could use powers given under s 120, for example, to obtain information that might be relevant to the Tribunal’s review of a decision. To do so would be to assist the Tribunal in the performance of its duties that flow from a person’s exercising a right to apply to it under s 103VA.
That is a pragmatic argument but the argument would continue with the proposition that the Registrar is better placed as a party than the SSAT for being a party is inconsistent with the role of a review body. That would have its foundation in the view that the High Court has of the role that a tribunal should play when proceedings are instituted in a court seeking prerogative writs directed to it and others. When the Australian Broadcasting Tribunal found itself in that position, it instructed counsel to contest the prosecutor’s case for relief and to present a substantive argument. The High Court said in The Queen v Australian Broadcasting Tribunal and Others; Ex parte Hardiman:[56]
“… In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is a risk that by so doing it endangers the impartiality which is expected to maintain in subsequent proceedings which take place if an when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”[57]
[56] (1980) 144 CLR 13; 29 ALR 289; 54 ALJR 314
[57] (1980) 144 CLR 13; 29 ALR 289; 54 ALJR 314 at 35-36; 306; 322 per Gibbs, Stephen, Mason, Aickin and Wilson JJ
This argument, which favours the SSAT’s not being a party to the proceeding in the Tribunal, may also tend to favour the Registrar’s not being a party either. An argument to that effect might be built on the view expressed by Gaudron and Gummow J in Oshlack v Richmond River Council.[58]Mr Oshlack had brought proceedings against the Richmond River Council (Council) and a land developer seeking to impugn the consent granted by the Council to the proposed development. Citing The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman, their Honours said:
“… The contestants in the Court of Appeal and in this Court have been the appellant and the Council. However, that circumstance should not obscure the tripartite nature of the trial. The appellant sought declaratory and injunctive relief to restrain the developer proceeding without a valid development consent. The Council is the authority which had granted the consent upon which the developer relied. In those circumstances, and also having regard to the earlier litigation, it might have been expected that the Council would submit to such order as the Court might make and that it would not become a protagonist, lest by doing so it endanger the impartiality it would be expected to maintain upon any subsequent applications to it which might ensue were relief granted to the appellant. …”[59]
[58] (1998) 193 CLR 72; 72 ALJR 578; 96 LGERA 173; 152 ALR 83
[59] (1998) 193 CLR 72; 72 ALJR 578; 96 LGERA 173; 152 ALR 83 at 77-78; 580; 177; 86
It might be thought that the Registrar is somewhat in the position of the Council. The Registrar is a decision-maker balancing competing interests and considering all relevant material whether gathered in the CSA or presented by those with an interest in the matter and making a decision based on probative material according to law. There are differences, though between the Council and the Registrar. Although bound by law, the Council has a broader canvas on which to develop policy and make decisions. The Registrar’s decision-making is strictly confined within the scope of the Administration Act and the Registration and Collection Act.
When regard is had to that, the Registrar’s position and role appears more closely akin to that of the Secretary under the SS Act. The Secretary must undertake the same duties. Usually, only one person, the claimant for a pension, benefit or allowance, is concerned by a particular decision but there are instances, such as family tax benefit, when the Secretary’s decision may affect the interests of more than one person. The Registrar’s decisions will often affect the interests of more than one person. In the case of both the Secretary and the Registrar, their decisions are made not only with an eye only to the individual claimant or applicant and the application of the letter of the appropriate legislation. When legislation calls for the exercise of a discretion, that discretion must be exercised with an eye to the particular circumstances of the claimant but also with an eye to the broader range of persons who are claimants. Speaking in the context of taxation law in Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd,[60] Lord Scarman expressed what I understand to be one of their duties in this way. His Lordship was:
“… persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly; to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims.”[61]
This would seem equally applicable to the way in which the Registrar’s duties are performed as well as those of the Secretary.
[60] [1982] AC 617; [1981] 2 All ER 93
[61] [1982] AC 617; [1981] 2 All ER 93 at 651; 112
It would seem that Parliament itself has taken a view that the Registrar’s role is more akin to that of the Secretary than of a tribunal or local council. I draw that conclusion from s 110D of the Registration and Collection Act when it provides that the parties to a proceeding under Subdivision B of Division 3 of Part 8 “… are the people who were the parties to the proceeding before the SSAT when the SSAT made the relevant decision.” Subdivision B is concerned with appeals from the SSAT to a court. The parties to the proceeding before the SSAT are set out in s 101(1) and are:
“(a) the applicant; and
(b)the Registrar; and
(c)any other person who was entitled to apply for review of the decision under section 89; and
(d)any other person who has been made a party to the review under subsection (4).”
On the scheme of the Registration and Collection Act as it is currently drafted and in light of the general principles of common law that apply, it is arguable that the Registrar, and not the SSAT, should be a party to the proceeding. Normally, I would not raise such an issue as it is a policy decision for the Executive Government to make initially and ultimately for Parliament to consider. I raise it, however, because the Tribunal benefits greatly from the participation of the decision-maker when it reviews any decision. In light of the principles expressed by the High Court in Re Hardiman, the SSAT may choose not to participate. The Tribunal may invite the Registrar to apply to be made a party but it is unable to require any person to become a party. These are not issues faced by the Tribunal when reviewing decisions under the SS Act and one wonders why they need to be faced when reviewing decisions of the sort referred to in s 103VA of the Registration and Collection Act.
I certify that the fifty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Olympia Sarrinikolaou Clerk
Date of Hearing 10 October 2008
Date of Decision 7 November 2008
Solicitor for the Applicant self represented
Solicitor for the Respondent No appearance
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