Gill v The Deputy Child Support Registrar

[1991] HCATrans 249

..

.	'
•	----~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A13 of 1991

B e t w e e n -

KEVIN A. GILL

Applicant

and

THE DEPUTY CHILD SUPPORT

REGISTRAR

Respondent

Application for removal
pursuant to section 40 of the

Judiciary Act

BRENNAN J
DEANE J

TOOHEY J

Gill 1 4/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 3.10 PM

Copyright in the High Court of Australia

BRENNAN J:  You are Mr Gill?

MR K.A. GILL: Yes, Your Honour.

MR G.B. HEVEY:  May it please the Court, I appear for the

respondent in this application. (instructed by the

Australian Government Solicitor)

BRENNAN J: Yes, Mr Gill.

MR GILL: I have a request of the Court first. We did lodge

an application in writing some weeks	ago.	I	would
like a friend of mine to assist me.	Is this
possible?

BRENNAN J:	You want him to sit next to you, do you?
MR GILL:	Yes please.

BRENNAN J: That is all right, he can sit next to you.

MR GILL:  Thank you. I do not know where to start. The

Deputy Child Support Registrar has claimed an amount of money from me, and I dispute this on

constitutional grounds. I wish to present to you

those grounds of dispute. There is an affidavit

and - - -

BRENNAN J:  I have already got two affidavits from you,

dated 26 May and 19 August.

MR GILL: Yes, and there is one for today's date,

Your Honour. Working, I have problems with getting things done and with time, and I had to have that

witnessed this morning, and I apologize for any

confusion it may cause.

BRENNAN J:	Have you any objection to the receipt of this affidavit, Mr Hevey?
MR HEVEY:	No, Your Honour, I think it appropriate that it

all be dealt with today.

BRENNAN J: Yes, Mr Gill.

MR GILL:  I should like to refer Your Honour to the

statutes and documents book, which I think you have

a copy of. There is an index which lists:

PART I. Sections of the Commonwealth

Constitution affected by the case, pages 1-2

PART II. Sections of the Child Support

(Registration and Collection) Act 1988

establishing the purpose of the Act and the

involvement of the Taxation Office, pages 3-7

Gill 2 4/9/91

PART III. Direct breaches of Constitution
(sections 72, 73 and 74 of Child Support

(Registration and Collection) Act 1988, page 8

PART IV. Compulsory acquisition of property

contrary to section 51 (xxxi) of the

Commonwealth Constitution, pages 9-10

PART v. Withdrawal of child maintenance and

child welfare from the list of matrimonial

causes and its consequences, pages 11-15

PART VI. The role of Taxation Office's

confidential records and other documents in

relation to assessment of maintenance, pages

16-17.

I refer to page 1, Your Honour, which is headed

Sections of the Commonwealth Constitution

applicable to the Notice of Motion:

Section 51. The Parliament shall, subject to

this Constitution, have power to make laws for
the peace, order and good government of the

Commonwealth with respect to . .... (xxii)

If it is all right with you, can we go on to

pages 3 and 4?

BRENNAN J: Yes.

MR GILL:  Thank you, Your Honour. In relation to the

statute and documents book at present before the

High Court, I say page 3 shows that the principal

object of the Child Support (Registration and

Collection) Act 1988 is the collection of

children's maintenance and the Act has nothing to

do with any taxation matters. Page 4 shows that

above maintenance is collected by the Child Support
Agency headed by the Taxation Commissioner and

Deputy Taxation Commissioner disguised as Registrar

Support Agency is an integral part of the taxation	and Deputy Registrar. Page 5 shows that the Child
office. Page 7 shows that all the taxation office's confidential records legislated solely for
the purpose of imposing, assessing and collecting taxation are used without any restriction for the
purpose of collecting maintenance.

I would like, if I may, to read part of this

transcript from the local court, my first hearing

at the local court, where His Honour Mr Hiskey

asked the representative of the Child Support

Agency:

HIS HONOUR:  Now the Child Support Agency is

an agency which works from within the

Gill 4/9/91

administrative or within the administrative

structure of the Tax Department.

Mr Stauwer, who was the representative for the

Child Support Agency said:

That is correct your Honour.

I have underlined the parts I think are most

relevant. Further on, His Honour said:

My understanding is that the Taxation

Department has very extensive powers to bank

records and the like in relation to tax

payers, is there any restriction of a

legislative character -

et cetera. Mr Stauwer replied:

No, your Honour we have access to all taxation

records.

To return to the statutes, my affidavit:

A law "tacking" another matter not being a

taxation matter onto a taxation law breaches

section 55 of the Commonwealth Constitution.

Although a law stating:  "The Taxation

Office shall keep records of taxpayers earnings for the purpose of assessing income

tax and collecting maintenance" would be

unlawful, the Child Support (Registration and

Collection) Act 1988 confronts us with

wholesale tacking of maintenance laws onto

taxation laws.

As a matter of fact the Child Support

Agency a body having nothing to do with

taxation has been "tacked" onto the Taxation

Office the result being an unlawful mixture of

maintenance laws and taxation laws!

Using the same "logic" nothing prevents the "tacking" (amalgamation?) of the Federal Police or ASIO onto the Taxation Office. Using

the external affairs power (treaty power) even

the CIA can be "tacked" onto it.

. Page 8 (section 72) shows that taxation

laws governing taxation overpayments have been

"modified" by "tacking on" section 72

permitting the confiscation (detournement) of

taxation refunds to repay illusory "debts to

the Commonwealth",

Gill 4/9/91

Further on page 8 sections 73 and 74

establish a Child Support Trust Account and

make the "debts to the Commonwealth" payable

into that account.

This is perhaps the best proof that the debts are phony, for all real "debts to the

Commonwealth" have to be paid into the

Consolidated Revenue Fund as per section 81 of

the Constitution.

Be it as it may, the payment of the above

moneys into a Trust account breaches

section 81.

If I could refer you now to page 9. This shows

that:

under section 23(3) a payee may decline to

perform the miracle of transforming her or his

private debt into a "debt to the

Commonwealth", while another payee receiving a Commonwealth benefit however small is deprived

per section 23(4) of such a choice and hers or

his private debt is compulsorily acquired and

transformed into a "debt to the Commonwealth".

Page 10 shows us that once the debt is

registered the payee loses any rights to his or her property (the debt) which has been in nearly every instance compulsorily acquired
per section 23(4) upon no terms whatsoever
contrary to section Sl(xxxi) of the
Constitution. (see section 30 of the Child

Support (Registration and Collection) Act

1988.

Furthermore on the same page 10 the payer
becomes burdened with a "debt to the

Commonwealth" without there being any previous

relationship between the payer and the

Commonwealth. This "miracle" raises the

following questions:

x) can a matrimonial cause (maintenance of children) be transformed into a "debt to the

Commonwealth"?

xx) if so since maintenance of children has

been removed from the definition of

"matrimonial cause" in section 4(1) of the
Family Law Act about a year before the Child

Support (Registration and Collection) Act was

legislated and the Commonwealth lost its power

to legislate concerning it (maintenance of

children), what head of power if any did the

Gill 4/9/91

Commonwealth use to transform a maintenance

liability into a "debt to the Commonwealth"?

Pages 11 and 12 show maintenance of children

being a "matrimonial cause" in 1986

Pages 13 and 14 show that maintenance of

children and welfare of children ceased to be

"matrimonial causes" prior to both Child

Support Acts being legislated.

the underlined words in paragraph (f) on

page 14 show that only "proceedings of a kind

referred to in paragraphs (a) to (eb)" are a

matrimonial cause.

In other words it is certain that my

prosecution in the Adelaide Local Court is NOT

a matrimonial cause.

What is it then?

It seems that the persons drafting the legislation OUTSMARTED themselves!

DEANE J:  But all these matters can be raised in the local

court. Why on earth should we remove it at this

stage into this Court when it is in the mess that

it currently is in? We are asked to go through

these documents looking for points, work out
whether there is an arguable point here and there,

when the matter is before a local court which is

competent to deal with them, at which it can be

raised.

MR GILL:  As I understand it, Your Honour, the local court

has no authority to adjudicate on constitutional

points and I feel that it is totally

unconstitutional - - -

DEANE J:	Why do you say that?
MR GILL: It is my understanding, I have no legal training,

it is just self taught.

DEANE J:	Have you tried to raise them in the local court?
MR GILL:	I did and the magistrate himself - I suggested to

him that I would like to have the High Court

adjudicate on constitutional matters and both he

and the ~olicitors for the Child Support Agency

commented that they do not have the power to

adjudicate on constitutional points.

BRENNAN J: That is an interesting proposition. That might

be something that they need to consider further if

you wish to raise it there.

Gill 6 4/9/91

MR GILL: Within the local court?

BRENNAN J: Yes.

MR GILL:  I am not being funny, Your Honour. You have lost

me a bit.

BRENNAN J: This is not the only court in the Commonwealth

that has jurisdiction to consider constitutional

challenges. If you wish to raise your

constitutional challenge in the court before which

you are appearing you can do so.

MR GILL:  I did, I raised these points before the local

court and the magistrate referred to some paper

work and then he replied that he could not

adjudicate on it.

DEANE J: Well, in that case there is probably an appeal

from the local court to some other court.

MR GILL:  I do not quite know where to begin with this, but

it does relate in fact to over 200,000 males who

are going to be prosecuted under this system of

maintenance, and nearly 600,000 children. It has

given the Federal Government - or the taxation

department or the Child Support Agency, whichever

one you want to look at - a power that is unreal

and totally unfair, and they have gained that power

by somehow rearranging a part of the Constitution

to suit themselves.

I see it as that they have no legal background

or right to rearrange the Constitution. When I put

this sort of thing to Mr Hiskey in the local court

he agreed that the High Court would have to comment
on it. He agreed that the matter would have to be

removed to the High Court, I think were his words.

DEANE J: Well, if he said the matter had to be removed to

the High Court, he was simply wrong, and that is

the end of it.

MR GILL:	The local court does have authority?
DEANE J:	I am not here to give you legal advice, I am

simply saying if the local court said that this

matter had to be removed to the High Court, it was

simply wrong.

MR GILL:  Just excuse me a minute. Two years ago similar

matters were raised in the Family Court and the

Family Court did not make a judgment on this

constitutional point. The woman, in fact, withdrew

her complaint and all future maintenance for the

children and I believe that this was done, in fact,

Gill 7 4/9/91

by the Family Court to avoid having such

constitutional questions in public and I believe

that it should be heard.

BRENNAN J: Well, Mr Gill, this Court has jurisdiction to

determine constitutional questions, but it is not

the only court that has that jurisdiction, and

ordinarily we would not wish to entertain a

challenge to the constitutional validity of an Act,

unless that case was crisp and ready for decision

by this Court, having been refined by argument and

consideration elsewhere.	Now this application of
yours does not fit into that category at all.	No

court has ever given a ruling on it, so that you

have a major obstacle in the way of getting it into

this Court when the matter has not been refined in

any way by prior consideration.

MR GILL: Well, as I understand it, it has been attempted in

the past and each court, or situation - has finally

come down to only the High Court can comment.

BRENNAN J: Well that is a proposition which, as

Justice Deane has said, is wrong, and it is not for

us to comment on other cases and we have not got

the transcript before us and when we do not have
applications before us in those other cases. That
is the obstacle that you face in the way of your

present application.

MR GILL:  I am a little bit puzzled. Where do I go from

here?

BRENNAN J: That is a problem for you, Mr Gill, not for this

Court.

MR GILL:  So I go back to the local court I suppose, and as

you say, until it is refined through argument and

all the rest of it, I cannot get it back to the

High Court.	Is that essentially what you are
saying?	I am not a legal professional,
Your Honour, I have -

BRENNAN J:	I appreciate that.
MR GILL:	I have tried speaking to solicitors and I have got nowhere. Nobody wants to talk about it, so that is
why I am here, on my own, sticking up for something
I believe in, which is the Constitution of the country.

BRENNAN J:  Mr Gill, we are here to decide cases. We are

here to remove cases where they are appropriate to

be removed. The difficulty with your application

is that it is, to use the phrase that Justice Deane

has used, in a mess. If there is a problem there,

it needs to be refined. Now, how it is refined

Gill 4/9/91

depends upon the nature of your litigation and the

courts through which it may pass, but you cannot,
as it were, pick it up raw and bring it into this

Court. Now that is the problem. How that problem

is to be solved is not a matter for this Court, it is a matter for the litigants in other courts, and

that includes yourself.

MR GILL:	Thank you.
BRENNAN J:	Do you have anything further that you wish to

add?

MR GILL:  I could rabbit on here for hours, yes, as a matter

of fact, but - - -

BRENNAN J: Well that, perhaps, Mr Gill, is the very

problem, that you might have to go on for hours, as

it were, without the matter being refined.

MR GILL:  Justice Deane said he was not here to give me

legal advice. I do ask you a question: where the

heck do I go now? Do I go back to the local court?

I have a hearing in the local court in November; is

that where I continue my argument, because I will

continue?

BRENNAN J:	You are at liberty to raise your argument before the local court. What the local court does with it will be a matter for the local court after it hears
your argument.
MR GILL:	And even though they would not hear the argument

in the past? Yes, alright.	Thank you very much
for your time.

BRENNAN J:  We need not trouble you, Mr Hevey.

The challenge to the validity of section 30 of the Child Support (Registration and Collection) Act

1988, which Mr Gill wishes to mount, would require

consideration of a number of issues, none of which	has yet received consideration by a trial court,
much less an intermediate court of appeal. To
remove that challenge into this Court at this stage
of proceedings would be to deprive this Court of the benefit of the analysis of the issues by other
courts. It will seldom be appropriate to remove complex constitutional issues into this Court when
the issues have not been refined. Accordingly the
application is refused.

MR HEVEY:	I apply for costs in the matter, sir.
BRENNAN J:	What do you have to say about the application

for costs, Mr Gill?

Gill	9	4/9/91
MR GILL: About - - -?

BRENNAN J:  The application for costs that is made against

you.

MR GILL:	No.
BRENNAN J:	You have nothing to say?

MR GILL:  Nothing to say. I will not pay any costs.

MR HEVEY:  I still make the application, sir, regardless

of -

MR GILL:  You will not be getting anything, like the

maintenance payments, my boy.

BRENNAN J: Well, the order is made, at all events, Mr Gill.

The application is refused with costs.

MR HEVEY:	May it please the Court.
MR GILL:	Thank you, sir, it was a good try.

AT 3.35 PM THE MATTER WAS ADJOURNED SINE DIE

Gill 10 4/9/91