Edward White and Child Support Agency
[2012] AATA 211
•13 April 2012
[2012] AATA 211
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3324
Re
Edward White
APPLICANT
And
Child Support Agency
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 13 April 2012 Place Sydney The Tribunal does not have jurisdiction to determine the application and, therefore, the application is dismissed.
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Ms G Ettinger, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – Child Support - whether decision of Child Support Registrar not to remove record from register reviewable - no jurisdiction - application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25
CASES
-
-
REASONS FOR DECISION
Ms G Ettinger, Senior Member
SUMMARY
Professor E White, the Applicant, has applied for review of a decision dated 17 May 2011 made by the Child Support Registrar refusing a request by him for deletion of records pertaining to him, held by the Department of Human Services, in particular the Child Support Program.
The Tribunal convened a hearing to consider whether or not the Tribunal has jurisdiction to accede to that request. The Tribunal also received written submissions from both parties. Professor White was self-represented and the Respondent was represented by Ms L James.
I reviewed the legislation and have taken into account the evidence and the submissions of both parties.
In coming to a decision I am mindful the Tribunal does not have inherent jurisdiction to review any and all decisions of Government bodies. It may only review a decision if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 (AAT Act) or another piece of legislation. I have been unable to identify an enactment that would confer jurisdiction on the Tribunal to review the decision from which Professor White is appealing.
Accordingly there is no jurisdiction, and the application must be dismissed. My reasons follow.
THE ISSUES
The only issue is whether the Tribunal has jurisdiction to review a decision of the Child Support Registrar not to delete Professor White’s record from its register.
THE LEGISLATION
The Tribunal may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This occurs pursuant to section 25 of the AAT Act which provides as follows:
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 review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
The enactment must specify the person or persons to whose decisions the provision applies, and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made.
A reference in the AAT Act to a “decision” includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.” (section 3(3))
The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision. The first is to identify precisely the decision of which review is sought, and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decisions.
THE EVIDENCE AND SUBMISSIONS
Professor White, the Applicant before the Tribunal applied for review of a decision of the Child Support Registrar refusing to delete a record relating to him. He had been a payer of an overseas registrable maintenance liability registered by the Child Support Registrar in 2002 pursuant to the then Child Support (Overseas - Related Maintenance Obligations) Regulations 2000. There is no disagreement that this ceased on 2 March 2009 when the relevant overseas order for spousal maintenance was discharged by the High Court of Justice, Stoke on Trent.
I am informed that the Child Support Registrar received the order on or about 31 January 2011, and following the application by Professor White, notified him of its decision on 17 May 2011. That decision explained that register entries can be deleted seven years after the date of the youngest child turning 18 years or having completed the last year of secondary schooling and the following had occurred:
(a)All incomes were reconciled
(b)All debts were collected
(c)All complaints were finalised.
Professor White was not satisfied with the decision of 17 May 2011, and on 16 August 2011 he applied to this Tribunal.
Professor White explained his position in relation to all the points (a) – (c). He said that his daughter was 26 years old, and there had never been any debts as he had always paid his maintenance. As to whether all complaints were finalised, he felt it was illogical to use that as an excuse not to delete a record just because he was pursuing his rights to have his record expunged.
Professor White engaged in further correspondence, and on 25 November 2011, the National Manager of the Child Support Program Quality, Department of Human Services (National Manager) wrote to him, clarifying the decision and letter to him of 17 May 2011. The National Manager referred to the permission given for the deletion of certain records seven years after a registrable maintenance liability has been finalised. She explained however that it was not applicable to certain registrable maintenance liabilities such as spousal maintenance orders, which was the nature of Professor’s White’s obligation. She also explained that notwithstanding Professor White made payments directly to his ex-wife, his overseas spousal maintenance order was, pursuant to international agreements, required to be entered onto the Child Support Program records.
The National Manger also informed Professor White that there was no facility to delete the records, but that she had instituted certain measures in order to reduce the risk of him being contacted by the Child Support Program about child support matters.
Following the letter of the National Manager, Professor White wrote to the Tribunal on 28 November 2011, and also told me at the hearing that he is very annoyed by the amount of inconsistent and contradictory information he has had about the issue.
The National Manager and Ms James both suggested that Professor White could seek review or lodge complaints with the Commonwealth Ombudsman, or the Australian Information Commissioner.
CONCLUSIONS
I am mindful of the submissions of both parties, and the correspondence which has passed between them. I also acknowledge that Professor White feels very frustrated by the situation.
However, this Tribunal may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This occurs pursuant to section 25 of the AAT Act which I have relevantly reproduced above. Section 25(1) of the Act provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
Following consideration of all the available legislation, I note that this Tribunal has limited powers in child support matters, and is conferred with jurisdiction to review decisions of the Registrar and the Social Security Appeals Tribunal (SSAT):
(a)following review by the SSAT in matters of percentage of shared care (Division 4 of Part 5 of the Child Support (Assessment) Act 1989);
(b)in matters relating to extension of time (Child Support (Registration and Collection) Act 1988);
(c)in matters relating to departure certificates.
Ms James also considered whether Professor White’s decision may be appealed under the Archives Act 1983, but submitted that in the Respondent’s view, Professor White’s decision could not be construed as a decision falling within the types of decisions reviewable by this Tribunal pursuant to that Act. I accept that submission.
I noted also Ms James’ reference to the cases of Henderson and Child Support Registrar [2004] AATA 829 and Confidential and Child Support Registrar [2010] AATA 577.
I further note submissions in respect of section 41 of the Child Support (Registration and Collection) Act 1988, a section which refers to the deletion of obsolete entries from the Child Support Register. While it is clear that decisions with respect to this section do not fall within the scope of what is capable of review by the Tribunal, it raises the question of whether this section is applicable to the circumstances the Applicant now finds himself in. This, of course, is a matter entirely for the Respondent to consider in this instance.
I found the submission that the Respondent can, where appropriate, delete hard copy records, but cannot delete electronic records quite curious.
In conclusion, I am satisfied that neither the parties nor I have been able to discern any enactment which would confer power on the Tribunal to review the decision of 17 May 2011 made by the Child Support Registrar.
DECISION
The application for review must be dismissed for lack of jurisdiction.
I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 13 April 2012
Date of hearing 8 February 2012 Applicant In person Solicitors for the Respondent Ms L James, Department of Human Service Legal Services Division
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