Kay and Child Support Registrar

[2015] AATA 429

[2015] AATA 429

DivisionGENERAL ADMINISTRATIVE DIVISION

File Number  2015/2620

ReJim Kay

APPLICANT

And  Child Support Registrar

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Dr D Cremean, Senior Member

Date  17 June 2015

Place  Melbourne

The Tribunal decides to affirm the decision of the Child Support Registrar dated 28 May 2015 refusing to issue a Departure Authorisation Certificate.

…[sgd] S A Forgie…
Deputy President

CATCHWORDS
CHILD SUPPORT – Departure Prohibition Order (DPO) issued – application for Departure Authorisation Certificate (DAC) – security provided by third party – whether appropriate – security to be given by payer – decision affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975; section 37
Bail Act 1977 (Vic); section 9
Child Support Assessment Act 1988; sections 3, 4
Child Support (Registration and Collection) Act 1988; sections 4, 17, 17A, 18, 18A, 19, 26, 26A, 26B, 30, 39B, 42B, 44, 47, 65A, 65B, 66, 71, 71A, 71B, 72A, 72C, 72D, 72E, 72F, 72I, 72L, 72M, 72N, 74, 75, 104, 105, 111B, 113, 113A
Commonwealth of Australia Constitution Act (The Constitution); sections 81, 83
Financial Management and Accountability Act 1997; sections 5, 21
Financial Management Legislation Amendment Act 1999; sections 3, 5
Migration Act 1958; sections 12, 13
Property Law Act 1958 (Vic); section 6
Public Governance, Performance and Accountability Act 2013; section 80
Taxation Administration Act 1953; sections 14S, 14U

CASES
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194; 174 ALR 585
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639; 51 FLR 325
Onder v Child Support Registrar [2011] FMCAfam 430; (2011) 250 FLR 345
Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 81 ALD 549; 140 FCR 375
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Eid and Federal Commissioner of Taxation [1998] AATA 73; (1998) 38 ATR 1066
Re Ganchov and Comcare (1990) 11 AAR 468
Re QVRC and Child Support Registrar [2015] AATA 271
Re Wetzell and Child Support Registrar [2005] AATA 607
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society [1982] FCA 169; (1982) 62 FLR 366; 42 ALR 496
The King v Regos and Morgan (1947) 74 CLR 613
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

OTHER MATERIAL

The Implementation of the Administrative Courts’ Decisions, The Hon. Justice Garry Downes AM, Speech to the International Association of Supreme Administrative Jurisdictions VIIIth Congress, Madrid, Spain, 26-28 April 2004
Tax Dispute Resolution: The AAT Perspective, The Hon. Justice Duncan Kerr Chev LH, Tax Bar Association of Victoria, 4 June 2013

Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers

Macquarie Dictionary, revised 3^rd edition, 2001, The Macquarie Library Pty Ltd

REASONS FOR DECISION

1. On 13 September 2013, the Child Support Registrar (Registrar) issued a Departure Prohibition Order (DPO) prohibiting Mr Kay from departing from Australia.[1]  Mr Kay had, and continues to have a child support liability that he has not discharged and that continues to increase.  He applied to the Registrar on 14 May 2015 for a Departure Authorisation Certificate (DAC) authorising him to leave Australia.[2]  The Registrar refused his application on the basis that it was unlikely that the DPO would be revoked within an appropriate period and he had not provided appropriate security for his return.  Furthermore, the Registrar decided that he was not satisfied that the certificate should be issued on humanitarian grounds or that refusing a DAC would be detrimental to Australia’s national interests.  At the hearing, the issues in dispute resolved around the appropriateness of the security offered by Mr Kay.  The security he offered took the form of a charge over real estate owned by a company of which his sister is now a director and of which he has been a director in the past.  We have decided that he has not given security as required as it cannot be given by a third party and that, even if he had, we would not have regarded it as appropriate security for Mr Kay’s return to Australia.  Therefore, we have affirmed the Registrar’s decision and set out our reasons below.

   [1] See documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T6 at 19

   [2] T documents; T20 at 161-172

   LEGISLATIVE BACKGROUND

2. Part VA of the Child Support (Registration and Collection) Act 1988 (CSRC Act) provides for DPOs.  The Registrar may make a DPO prohibiting a person from departing from Australia for a foreign country in the following circumstances:

   “(a)     the person has a child support liability; and

   (b)the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and

   (c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:

   (i)child support debts arising from a registrable maintenance liability under section 17; or

   (ii)a child support debt arising from a registrable maintenance liability under section 17A; or

   (iii)one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and

   (d)the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:

   (i)wholly discharging the child support liability; or

   (ii)making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.”[3]

   [3] CSRC Act; s 72D(1)

1. A “child support liability” is defined in s 72E:

   “For the purposes of this Part, a person has a child support liability if:

   (a)the person has a registrable maintenance liability of a kind mentioned in section 17 or 17A, subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and

   (b)an amount payable under the registrable maintenance liability is a child support debt; and

   (c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.”

1. Once the Registrar has issued a DPO in respect of a person, that person must not depart from Australia once he or she knows it is in force (or is reckless as to whether it is in force) and his or her departure is not authorised by a DAC.[4]  Provision is made in Division 3 of Part VA for the variation and revocation of a DPO in certain circumstances.  Those circumstances are set out in s 72I.  Section 72I sets out those circumstances in which the Registrar must revoke a DPO:

   “The Registrar must revoke a departure prohibition order in respect of a person if:

   (a)the person no longer has a child support liability; or

   (b)the person has a child support liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or

   (c)the person has a child support liability, but the Registrar is satisfied that the liability is completely irrecoverable.”

Revocation or variation of a DPO may come about on the Registrar’s own motion or as a result of an application by the person in an approved form.[5]

[4] CSRC Act; s 72F

[5] CSRC Act; ss 72I(3) and (4)

1. A person in respect of whom a DPO is in force may apply for a DAC authorising him or her to depart from Australia for a foreign country.  Section 72L provides for two situations in which the Registrar must issue a DAC.  The first, found in s 72L(2) arises:

   “… if the Registrar is satisfied:

   (a)that, if the certificate is issued:

   (i)it is likely that the person will depart from Australia and return to Australia within the period that the Registrar considers appropriate; and

   (ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and

   (b)that it is not necessary for the person to give security under section 72M for the person’s return to Australia.”

1. Section 72M provides:

   “(1)     A person may give such security as the Registrar considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Registrar and is specified in the departure authorisation certificate.

   (2)The Registrar may substitute a later day for the day mentioned in subsection (1), either on the Registrar’s own motion, or on application by the person in the approved form.

   (3)The Registrar may refuse an application by a person to substitute a later day if:

   (a)the person refuses to increase the value of the security already given to a level that the Registrar considers appropriate; or

   (b)the person refuses to give such further security as the Registrar considers appropriate; or

   (c)the Registrar considers that it would not be appropriate to substitute the later day.”

2. The second set of circumstances in which the Registrar must issue a DAC is set out in s 72L(3):

   “If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:

   (a)the person has given security under section 72M for the person’s return to Australia; or

   (b)if the person is unable to give such security, the Registrar is satisfied:

   (i)that the certificate should be issued on humanitarian grounds; or

   (ii)that refusing to issue the certificate will be detrimental to Australia’s interests.”

1. If issued in respect of a person, a DAC must authorise the departure of that person on or before the seventh day after the day specified in the certificate.  The day specified in the certificate must be a day that is after the day on which the DAC is issued but no more than seven days after that day.  This is the effect of s 72N.

   FACTUAL BACKGROUND

2. The factual background to the issues to be decided in this case were largely not in dispute between the parties.  We will set them out in this section of our reasons with references to the evidentiary material on which they are based.

3. On the basis of his statement dated 5 June 2015, we find that Mr Kay is a self-employed consultant and has been for the past 25 years.  For the past 20 years he has travelled overseas for work-related purposes on a regular basis. 

Departure from Australia	Return to Australia
22 October 2000	5 November 2000
23 August 2001	8 September 2001
23 September 2003	1 October 2003
26 August 2004	5 September 2004
30 July 2005	16 August 2005
14 August 2006	29 August 2006
5 August 2007	27 August 2007
20 July 2008	27 July 2008
9 August 2009	18 August 2009
24 October 2010	5 November 2010
17 April 2011	27 April 2011[6]

[6] T documents; T5 at 17

1. Mr Kay and his wife are separated and have a daughter born in 2003.  He was, and continues to be, liable to pay child support in respect of his daughter.  On 9 November 2007, Mrs Kay registered a child support case with the Child Support Agency.  The Registrar is responsible for the collection of payments on behalf of Mrs Kay.  An officer of the Child Support Agency wrote to Mr Kay on 14 November 2007 advising him that the child support amount that he would be required to pay each month would be $620.33.  The Registrar’s assessment related to the period from 9 November 2007 until 8 February 2009.[7]  

   [7] T documents; T4 at 10

1. On 30 November 2009, Mrs Kay lodged a Change of Assessment Application seeking an increase to the assessment of child support.  A Senior Case Officer considered her application and decided to set Mr Kay’s adjusted income at $100,000 for the period 30 November 2009 to 29 November 2011.  Mr Kay objected to the adjustment but his objection was disallowed on 1 September 2010.  A fortnight later, on 15 September 2010, he applied to the Social Security Appeals Tribunal (SSAT) for review of the amended assessment.  The Registrar issued a DPO in 2011.[8]

[8] T documents; T13 at 43;

1. On 29 March 2011, the SSAT set aside the change of assessment decision and recommended that an application be made to a court having jurisdiction under Division 4 of Part 7 of the CSA.  The effect of the SSAT’s setting aside the Registrar’s change of assessment decision was to set aside the assessment of the debt that Mr Kay then owed as unpaid child support.  As a result, the Registrar revoked the DPO on 1 April 2011.[9]

[9] T documents; T5 at 16

1. Mr Kay began to make payments of child support in the amount of $170.00 per month from 7 November 2011.[10] 

[10] T documents; T5 at 14

1. The Federal Circuit Court ordered that Mr Kay’s adjusted taxable income for child support purposes be set at $100,000 for the period from 30 November 2009 to 30 June 2014.  It did so on 14 June 2013.  That meant that Mr Kay was assessed to pay child support of $9,120.00 per annum or $760.00 per month for his daughter.[11]  The Register was amended from 23 July 2013 to reflect that assessment.  Registration of the court’s order led to the reinstatement of the debt representing the arrears of child support.  At that time, the debt amounted to $21,543.33.  Apart from payments amounting to approximately $77.00,[12] Mr Kay has not made a further payment since that the Federal Circuit Court made its order.

   [11] T documents; T13 at 43

   [12] T documents; T22 at 190

2. On 30 September 2013, the Registrar calculated that Mr Kay then owed $23,239.91.   His delegate issued a DPO on the same day[13] and advised Mr Kay of it in a letter of the same date.[14]  Mr Kay applied for a DAC offering $5,000 by way of security[15] but, in a decision dated 2 January 2014, the Registrar refused his application.  Senior Member Fice affirmed the Registrar’s decision on 5 May 2014.  He gave his reasons orally for making that decision. 

   [13] T documents; T6 at 19

   [14] T documents; T7 at 20-21

   [15] Mr Kay’s statement lodged 5 June 2014 at [8]

3. A year or so later, on 28 October 2014, Mr Kay applied for a DAC through his solicitors who wrote:

   “Section 72L(3) of the Child Support (Registration and Collection) Act provides that a Departure Authorisation Certificate must be issued if the applicant has given security for the person’s return to Australia under section 72M.

   Please note that if sufficient security is provided under Section 72L(3) then the Registrar must issue a Certificate.  The query as to the destination of the proposed travel, purpose of travel and planned itinerary or event set out in your letter to our client dated 28 July, 2014 are inapplicable in these circumstances.

   Please find attached draft Charge in favour of the Child Support Agency over real estate registered in the name of … [Sister’s Company].  We have also attached the relevant company search showing the Director, title search showing that there is one mortgagee, the National Australia Bank, and that as at the 30^th June, 2014 this mortgage secured $540,000.  Please also find attached Rates Notice recording a capital improved value of $730,000 as at 1^st July, 2014.  Accordingly, you will see that given the security previously requested in your correspondence of $30,840.15, there is many times more than the required amount of security in this property.

   We look forward to your prompt advice as to whether by arranging the Company to provide such Charge, our client has provided sufficient security for his travel and in such circumstances shall immediately arrange for execution of such document.”[16]

   [16] T documents; T8 at 22

1. A document entitled “Charge” was attached to the letter.  It read:

   “I, KITSA LAMBERTY of …, as sole Director for COMBOURNE PTY LTD (ACN 007410102 HEREBY CHARGE the property registered in the name of COMBOURNE PTY LTD at …, Certificate of Title Volume … Folio … with the amount of the outstanding child support liability of JIM KAY, Reference …, in favour of the Child Support Agency by my execution of this Deed below until he returns from overseas following his travel commencing on or about 12^th November, 2014.

   Such Charge shall include the Child Support Agency having the right to register the same over Certificate of Title Volume … Folio … on the basis that such registration is withdrawn by the Child Support Agency no later than seven days after the Child Support Agency’s notification of Mr Kay’s return to Australia.

   DATED the   day of   2014

SIGNED SEALED AND DELIVERED as a Deed by KITSA LAMBERTY in Victoria in the presence of: )
)
)”[17]

[17] T documents; T8 at 23

1. Mr Kay made two payments of child support before he applied for a DAC.  The first, in the amount of $28.25, was made on 8 September 2014 and the second, in the amount of $24.50, was made on 7 October 2014.[18]  Mr Kay made a third payment of $24.50 on 7 November 2013 just after he had made his application.  The Registrar had also intercepted a tax refund of $491.61 on 17 November 2014.[19]

   [18] T documents; T22 at 190

   [19] T documents; T22 at 190

2. Combourne Pty Ltd, which has issued two $2.00 shares, was registered on 17 December 1991 and is an Australian Proprietary Company.  Mr Kay’s sister was appointed as its director on 8 March 2011 and remains its director but she has previously been the director of Combourne Pty Ltd as has Mr Kay.  The extract of information from the database held by the Australian Securities and Investment Commission (ASIC) shows that the siblings have alternated as director of Combourne Pty Ltd since 3 June 2010.[20]  The letter written by Westpac to the Registrar in response to a request for details of accounts held by Mr Kay describes Combourne Pty Ltd as a trustee for a family Company.[21]

   [20] T documents; T 18 at 135-136

   [21] T documents; T15 at 74

3. The land described in the draft Charge is subject to a mortgage to the National Australia Bank registered on 12 January 2011.[22]  The local council set the site value of the property on 1 July 2014 as $520,000 and its capital improved value as $730,000.[23] 

[22] T documents; T8 at 25

[23] T documents; T8 at 28

1. On 10 November 2014, a delegate of the Child Registrar refused to issue a DAC on the basis that the conditions in s 72L of the CSRC Act had not been met.[24]  On 12 November 2014, Mr Kay applied to the Tribunal for review of the Registrar’s decision.   

   [24] T documents; T10 at 34-35

2. The application was heard by Dr Hughes, Member, and he set aside the Registrar’s decision.  We will come back to his reasons in more detail.  Dr Hughes set out the submissions that had been made on behalf of the parties and the authorities on which they relied.  In summary, his reasons were:

   (1)       May a person other than payer of child support give security?

   “… The primary question is whether security has been offered, and in this case it has been.  The objective of the security is to ensure that, in the event of the applicant’s defaulting by failing to return to Australia, his existing debt will be paid.  If the security is adequate in a financial sense, the fact that it has been provided by a third party should not be to the point.”[25]

   [25] Re QVRC and Child Support Registrar (Re QVRC) [2015] AATA 271 at [20]

   (2)Relevance of the Child Support Guide

   “On the question of what the Registrar might consider appropriate, reference needs to be made to the Child Support Guide (the Guide).  The Guide states that the Registrar will only accept security that is, inter alia, offered by the debtor rather than third parties and which is in a form readily convertible to cash.  This gives rise to a threshold issue, namely, whether the Registrar is obliged to follow the Guide.  If so, then regardless of the Tribunals’ views as expressed above, the security offered by the applicant will necessarily be inadequate because it is offered by a third party.

   …

   “The Tribunal is of the opinion that the Guide cannot be regarded as binding on the Registrar.  The Registrar has a statutory obligation to give personal consideration as to whether any security is appropriate.  The Guide assists in identifying issues which should properly inform the Registrar in exercising this discretion, but it cannot constrain the ultimate exercise of that discretion.”[26]

   [26] Re QVRC [2015] AATA 271 at [22]-[26]

   (3)       Must security be readily convertible to cash?

   “Assuming, on this basis, that the Registrar is entitled to accept security offered by a third party, the next question becomes whether there are other factors which might render inappropriate the security offered by the applicant in this instance.  In this respect, it is still relevant to consider whether the security is in a form readily convertible to cash.

   It must be emphasised that the requirement that the security be readily convertible to cash reflects government policy rather than a specific legislative requirement, although it is a logical consideration in respect of whether the security is appropriate in all the circumstances.  The applicant contended that the security he offered was, in effect, readily convertible to cash.  It was not the same as cash in the bank but there was a right of enforcement through the courts.

   The respondent contended that the security was not readily convertible to cash on the basis that the enforceable rights of a secured creditor could vary considerably according to a number of different legal factors and there were many situations under which a security could lose priority.  The charge, once executed, would require the Registrar to take legal action in order to enforce payment, which could be time consuming, complicated and costly.

   In the Tribunal's opinion, the mere fact that security is offered against real estate owned by a third party should not, of itself, render the security as being not readily convertible to cash.  That there might be complications with secured creditors, or that it might be necessary to initiate proceedings to enforce the security, are potential issues confronting the realisation of any security.  At face value, and in the absence of any evidence to suggest otherwise, the Commonwealth will have obtained security sufficient to secure its interest in the applicant’s meeting his outstanding child support debt. There is no evidence – as distinct from speculation − that the security is not readily convertible to cash.”[27]

   [27] Re QVRC [2015] AATA 271 at [27]-[30]

   (4)       Is the security offered appropriate?

   “Ultimately, the applicant's past behaviour, attitude and demeanour are not to the point, if one accepts that adequate and enforceable security has been offered in relation to his existing child support debt.  A DAC must be issued. There will, in effect, be no outstanding liability.

   It is important that the question of the applicant's prior conduct is not confused with the adequacy of the security.  If the security is sufficient to ensure that the applicant's debt will be paid in the event that he defaults upon returning from overseas, then regardless of the applicant's prior conduct, the Registrar is obliged under section 72L(3)(a) to issue a DAC.”[28]

   (5)       Relevance of determination

   “There remains one final consideration in this matter.  These proceedings relate to an appeal against a decision by the Registrar not to issue a DAC in respect of travel proposed by the applicant between 12 November and 22 November 2014.  That period has now passed. In this respect, the Tribunal's determination that the applicant was entitled to be issued with a DAC in November 2014 is of no practical consequence.  This decision has no direct bearing upon the adequacy of any security offered by the applicant in respect of a future application for a DAC.  The same security may be offered but its adequacy, in a financial sense, would have to be re-appraised in light of the circumstances existing at the time of the proposed future travel.  Apart from anything else, it would be necessary to consider, as at the date of the proposed travel, the value of the property, the amount of the mortgage and any evidence then affecting the ability of the respondent to convert the security to cash in the event of default by the applicant.”[29]

   CONSIDERATION

   [28] Re QZVRC [2015] AATA 271 at [34]-[35]

   [29] Re QVRC [2015] AATA 271 at [36]

General approach to issues

1. On behalf of Mr Kay, his solicitor Mr McClelland, relied on Dr Hughes’ reasons for decision.  For the reasons that follow, we find ourselves in disagreement with those reasons.  At their core, the reasons for our disagreement lie in the different approaches taken to resolving the same issue. 

   A.       Statutory interpretation

1. We begin with the principles of statutory interpretation for it is Division 4 of Part VA of the CSRC Act that sets the parameters within which a DAC either must or may be made.  It is not the Guide, although that has a role to which we will return, but the words of the relevant provisions when read in light of Parliament’s intent in enacting those provisions.  This is inherent in the principle stated by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:[30]

   “... The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.”[31]

   [30] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434; Gibbs CJ, Stephen, Mason and Wilson JJ; Aickin J dissenting

   [31] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434 at 320; 169-170; 966; 443

1. Regard may be had to the context in which legislation was enacted to ascertain the mischief that Parliament intended to remedy and so ascertain the legislative intent: 

   “          It is well settled that at common law, apart from any reliance upon
    s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure …. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy …. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intention …”[32]

   B.Relevance of policy or guidelines

   [32] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618 at 408; 634-5 per Brennan CJ, Dawson, Toohey and Gummow JJ and see also Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317 at 25-26; 335-6 per Mason J; TCN Channel Nine Pty Ltd v Australian Mutual Provident Society [1982] FCA 169; (1982) 62 FLR 366; 42 ALR 496 at 379-380; 507-508 per Bowen CJ, Lockhart and Ellicott JJ and Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375-6; 271-2 per Woodward J

2. When he was President of the Tribunal, Brennan J discussed the importance of guidelines in his reasons for decision in Re Drake and Minister for Immigration and Ethnic Affairs(No 2)[33] (Drake). He did so in the context of the Tribunal’s exercise of discretionary powers given to the Minister under ss 12 and 13 of the Migration Act 1958 (Migration Act) to order the deportation of an alien in certain circumstances.  Referring to earlier proceedings heard by the Full Court of the Federal Court involving the same applicant, Brennan J noted:

   “          The Tribunal’s function, when it undertakes a review of a Minister’s decision to deport, is to form its own judgment of what is the correct or preferable decision in the circumstances of the particular case as revealed in the material before the Tribunal (Drake’s case, supra, [(1979) 2 ALD 60; 24 ALR 577] at 589).  It is a discretionary judgment, for s 12 confers a discretionary power, and ministerial policy may play a part in it.  In Drake’s case, Bowen CJ and Deane J left it to the Tribunal to determine the part which ministerial policy should play, saying (supra, at 590):

   ‘          It not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal.  That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.’”[34]

   [33] [1979] AATA 179; (1979) 2 ALD 634

   [34] [1979] AATA 179; (1979) 2 ALD 634 at 636

3. His Honour went on to consider various factors relevant in deciding how the discretion should be exercised concluding:

   “          The multiplicity of factors for consideration in each case evidently precluded the parliament, as it precludes the Minister, from defining principles of universal application to govern the exercise of the power in every case.  In the absence of such principles, the exercise of the power must depend upon the circumstances of each case and the weight then to be accorded to the relevant factors – whether factors emerging from the evidence, or factors revealed by a perception of the relevant interests of Australia. …”[35]

   [35] [1979] AATA 179; (1979) 2 ALD 634 at 638-639

4. When a discretionary power is conferred on more than one decision-maker, his Honour continued, a tendency to inconsistency in making decisions may appear:

   “          Inconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. …

   …

   There are powerful considerations in favour of a Minister adopting a guiding policy.  It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another.  Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy.  By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

   Of course, a policy must be consistent with the statute.  It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created.  A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1 …). … ”[36]

   [36] [1979] AATA 179; (1979) 2 ALD 634 at 639 -640

5. Brennan J then turned his mind to the role that Ministerial policy should play in the Tribunal’s review of decisions made having regard to that policy.  His first observation was that, in point of law, the Tribunal’s duty is to make the correct or preferable decision in each case on the material before it.  In doing that, it is at liberty to adopt whatever policy it chooses, or no policy at all.  It could not, of course, adopt a policy of its own volition that was inconsistent with the statute just as it could not apply a Ministerial policy that was inconsistent.  To do so would be to vitiate its decision.[37]  Assuming that the policy is lawful and acknowledging that the Tribunal cannot deprive itself of the freedom to depart from ministerial policy in a particular case:

   “… there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.

   If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides.  To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created.  On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.”[38]

   [37] [1979] AATA 179; (1979) 2 ALD 634 at 642-643

   [38] [1979] AATA 179; (1979) 2 ALD 634 at 644

6. As for the idea of the Tribunal’s developing a general policy of its own to guide discretionary decision-making, Brennan J refuted it saying:

   “          But, in general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own.  Although the practice of giving reasons for decisions inevitably spins out threads of policy from the facts of the cases, the policy developed in this way originates in the need to ensure that justice is done in individual cases, and it is a different development from a ministerial declaration of broad policy relating to the generality of cases.  The Tribunal is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister who is responsible to the parliament for the policy he adopts.  The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions.  The Tribunal is not linked into the chain of responsibility from Minister to government to parliament, its membership is not appropriate for the formulation of broad policy and it is unsupported by a bureaucracy fitted to advise upon broad policy.  It should therefore be reluctant to lay down broad policy, although decisions in particular cases will impinge on or refine broad policy emanating from a Minister.  Different considerations might apply if a reviewable discretionary power were not subject to ministerial supervision (see, in connection with ministerial supervisions, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1978) 52 ALJR 254).”[39]

   [39] [1979] AATA 179; (1979) 2 ALD 634 at 644

7. Returning to the application of a Ministerial policy in a particular case, Brennan J said:

   “ These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary, If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.

   In my view, the Tribunal, being entitled to determine its own practice in respect of the part which the ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.

   When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.  Where the policy would ordinarily be applied, an argument against the policy or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

   The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.”[40]

   [40] [1979] AATA 179; (1979) 2 ALD 634 at 645

8. There are five matters to be kept in mind when applying the principles set out by Brennan J in Drake as they have been considered in subsequent cases in various contexts:

   (1)The principles developed in Drake apply to policy developed in relation to the exercise of discretionary powers:

   (a)The particular emphasis in Drake is on policy developed by a Minister and the consequent parliamentary and political supervision that attends the promulgation of policy at that level.

   (b)The principles apply also to policy developed at levels other than Ministerial level.

   (i)It may be thought that the weight given to policy may vary according to its author but, provides it withstands scrutiny for lawfulness and is applied in accordance with the principles set out in Drake, it is difficult to see that there is a basis for treating policy developed under different hands in different ways.

   (2)The principles do not apply to the interpretation of the enactment conferring the discretionary power either in relation to the parameters of that power or otherwise.[41]

   [41] Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 81 ALD 549; 140 FCR 375; at 550; 386 per Moore J

   (3)The Tribunal must first interpret the relevant enactment to identify the decision-maker’s powers and whether those powers are discretionary or not.

   (4)If a power is discretionary, it is necessary to determine the scope of the discretion given to a decision-maker.[42]

   [42] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194; 174 ALR 585 at 205; 591 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80

   (5)The power to make guidelines is determined by reference to “... the subject matter, scope and purpose of the statute ...”.[43]

   [43] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309 per Mason J. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505

   (a)If a decision-maker is free to adopt a policy to guide it in the exercise of its discretion, its policy must:

   (i)be consistent with the Act;[44]

   (ii)not require the decision-maker to take irrelevant circumstances into account;[45] and

   (iii)“... leave ... [the decision-maker] free to consider the unique circumstances of each case ... [It] does not control the making of decisions ... [but] is informative of the standards and values which a ... [decision-maker] usually applies. ...”.[46]

   (6)The Tribunal must determine that the policy has been formulated within the boundaries of that power and so is a lawful policy:

   (a)the Tribunal would make an error of law were it to make a decision applying an unlawful policy.

   [44] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 640 per Brennan J

   [45] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 641

   [46] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 641 and see also the general discussion of the principles by Mr SC Fisher, Member, in Re Gray and Australian Securities and Investments Commission [2004] AATA 1235

C.The place of the Tribunal’s decisions as precedents

1. Mr McClelland submitted that Dr Hughes’ decision should be followed.  He said that Dr Hughes had already ruled that the security offered by Mr Kay was sufficient and the circumstances are as close to identical with those presented to us as can ever hope to be the case.  He gave his decision and reasons for decision in a 12 page document and there was no appeal lodged against his decision.  Mr McClelland relied on a passage from a paper delivered by a former President of the Tribunal, Downes J.  The paper was entitled “The Implementation of the Administrative Courts’ Decisions” and was delivered to the International Association of Supreme Administrative Jurisdictions VIIIth Congress held at Madrid, Spain from 26 to 28 April 2014.  In part, he said:

   “… [G]ood administration involves consistency.  One of the purposes of the Australian Government establishing the Administrative Appeals Tribunal was to improve the quality of administrative decision-making by the Australian Government. …

   A characteristic of common law systems of jurisprudence is the doctrine of precedent.  The doctrine is accompanied by two characteristics not so common in continental European jurisprudence.  The first is the giving of detailed reasoned judgments.  The second is the publication and ready availability of the decisions of courts.  These common law characteristics are carried through to the work of the Administrative Appeals Tribunal.

   The legislation governing the decisions of the Administrative Appeals Tribunal requires that the Tribunal give written reasons for decisions which include the Tribunal’s findings of fact together with reference to the evidence or other material on which the findings are based.  The decisions of the Tribunal are accordingly contained in published documents …

   Nowadays the decisions of the Administrative Appeals Tribunal can be readily accessed on the Internet …

   The giving of detailed reasons for decision and the publication of those reasons are the matters which underpin the doctrine of precedent.  Their presence naturally leads at least to an informal doctrine of precedent.  Uniformity of decision-making is desirable.  The publication of reasons makes it possible.  Accordingly, although no res judicata or other estoppel and no formal doctrine of precedent exists in administrative law, members of the Administrative Appeals Tribunal will follow earlier decisions of the Tribunal unless they are satisfied that the earlier decision is manifestly wrong.  This is particularly so when the same issue arises in proceedings between the same parties.  Effectively there is a res judicata in the Administrative Appeals Tribunal as well as issue estoppel.  Effectively there is a doctrine of precedent.”

1. Mr McClelland also referred us to a passage from a paper presented by the Tribunal’s President, Kerr J, to the Tax Bar Association of Victoria on 4 June 2013 when he said:

   “Members of the Tribunal are not bound to follow other AAT decisions but, unless persuaded that an earlier decision of the Tribunal was plainly wrong, in practice they usually do for reasons of consistency and sound administration.”[47]

   [47] Tax Dispute Resolution: The AAT Perspective

1. These sentiments are not new.  They found expression in a decision of the Tribunal delivered many years ago in Re Ganchov and Comcare[48] (Ganchov) by Deputy President Todd.  He said:

   “… [D]ecision-makers at lower levels can hardly be expected to treat Tribunal decisions as precedents if the Tribunal itself does not.  Inconsistency after all is not a problem only in primary decision-making.  While it is true that consistency is not the hall-mark of justice (see Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325), what Brennan J said in Re Drake and Minister for Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 remains of lasting value:

   ‘Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.’”[49]

   [48] (1990) 11 AAR 468

   [49] (1990) 11 AAR 468 at 470

1. We have set out the same passage from Drake in the previous passage in these reasons.  It is a passage that relates to the place of policy guidelines in the exercise of discretionary powers.  It was written in a context that expressly acknowledged that “… The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it …”.[50]  Where a decision-maker concludes that more than one “correct” decision may be made, he or she should identify the parameters within which those decisions may be made.  Only after carrying out that task does a decision-maker turn to select the preferable decision from those correct decisions.  The remarks of Brennan J in Drake are relevant in the choice of the preferable decision.  If there is only one correct decision, there will be no preferable decision and policy will not be relevant.  With the utmost respect to Deputy President Todd, it is important to keep the principles set out in Drake in that context.  There is nothing in Drake that suggests that Brennan J thought otherwise.  He was careful to underline that the Tribunal has a duty to ensure that any policy it chooses to apply is lawful.  The same must be said of the Tribunal in its choice of the decision or decisions that the legislation permits it to make.  That decision, or those decisions, must be lawful. 

   [50] [1979] AATA 179; (1979) 2 ALD 634 at 642

1. The case of Nevistic v Minister for Immigration and Ethnic Affairs,[51] to which Deputy President Todd referred, does not add to the point made in Ganchov for it too relates to the application of policy.  Deane J pointed out that:

   “… [W]hile consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it.  As Smithers J pointed out in Gungor v Minister for Immigration and Ethnic Affairs … consistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable.  Decision makers may be consistently wrong and consistently unjust.  The Tribunal is not bound by either its own decisions or by the content of government policy.  There have been and will be cases in which the Tribunal concludes that it should refuse to follow a previous decision of the Tribunal or reject or disregard the dictates of a relevant policy of the Government.  The existence of such cases serves to emphasize the fact that each applicant to the Tribunal is entitled to have his or her application for review decided on its own particular merits.  The desire for consistency should not be permitted to submerge the ideal of justice in the individual case.”[52]

   [51] [1981] FCA 41; (1981) 34 ALR 639; 51 FLR 325; Franki, Deane and Lockhart JJ

   [52] [1981] FCA 41; (1981) 34 ALR 639; 51 FLR 325 at 646-647; 334-335 (citation omitted)

1. There is nothing in these cases that suggests that we can walk away from our duty to ascertain the law that governs the decision we must review.  They do not suggest that we are bound to apply the reasoning given in an earlier decision simply because it has considered the same issue.  Consistency comes from two sources.  First, it comes from using our skills, the tools that we are given in the form of the principles of statutory interpretation and the insight that comes from previous authorities decided by the courts to interpret and apply the law correctly.  It is the law that has been enacted by Parliament and, where it has been incorporated by statutory law, the common law, providing the bedrock of consistency.  At times, the law will not be clear and well intentioned and skilled members may disagree.  Ultimately, the Federal Court or the High Court will resolve the disagreement and the law as they determine it will continue to provide that bedrock of consistency.  In the meantime, disagreement among differently constituted Tribunals is unfortunate and inevitably means some degree of lack of certainty as to how the law will be viewed in a particular case.  As unfortunate as that outcome is, it cannot justify the Tribunal’s turning away from its duty to ascertain that law simply because a differently constituted Tribunal has already expressed a view on the law.  To do that can potentially lead to error and inconsistency for the starting point is the law and not the view expressed by another Tribunal regarding the meaning of that law.  The second source from which consistency comes is in the exercise of any discretion and we have already written about that above.

1. For these reasons, we have not adopted Dr Hughes’ reasons unquestioningly.  We have instead gone back to our duty to ascertain the law and the parameters of any discretion it confers.  We have then turned to the evidence and considered the decision we should make.

   When the Registrar must issue a DAC

2. As we set out at [5]-[7] above, s 72L sets out two circumstances in which the Registrar must issue a DAC. Beginning with s 72L(2), it sets out three factors, each of which must exist before the Registrar is required to issue a DAC. The Registrar has not questioned that Mr Kay will meet the first factor which is that he is likely to leave and return to Australia in an appropriate time. The second factor set out in s 72L(2)(a)(ii) is a different matter for it cannot be met. That factor is that it is likely that, within a period the Registrar considers appropriate, he or she will be required by s 72I(1) to revoke the DPO in respect of Mr Kay. In order for the Registrar to be required to revoke a DPO under s 72I(1), Mr Kay would have to be in the position in which either he no longer has a child support liability or has arrangements satisfactory to the Registrar in place for wholly discharging the liability or the Registrar is satisfied that the child support liability is completely irrevocable. On the evidence we have, we are satisfied that Mr Kay continues to have a child support liability in that he has a child support debt. We are satisfied that he has not made any arrangements to discharge the debt at all let alone wholly as required by s 72I(1)(b) of the CSRC Act. As to whether the child support liability is completely irrevocable, that is not a matter on which we can make a finding in this case. The evidence was not directed to that issue as the focus of the case was the security under s 72M.

1. Given that Mr Kay’s circumstances do not come within s 72L(2)(a), the third factor set out in s 72L(2)(b) is not relevant in this case because, even if it applied, s 72L(2) cannot apply when the factor in s 72L(2)(a)(ii) cannot be met.  The third factor set out in s 72L(2)(b) is “that it is not necessary for the person to give security under section 72M for the person’s return to Australia.” We will return to this but in the context of s 72M.

   Section 72L(3)(a): security under section 72M

2. Section 72L(3) has two bases on which the Registrar must issue a DAC but only that in s 72L(3)(a) is relied upon by Mr Kay. That is that he has given security under s 72M for his return to Australia. We have already set out the terms of s 72M(1) above but will repeat the opening words. They are that “A person may give such security as the Registrar considers appropriate by bond, deposit or another means, for the person’s return to Australia …” by a day that the person and the Registrar agree upon.  The Registrar will specify the day in the DAC.

   A.What is “security”?

3. The first question that must be asked in interpreting s 72M(1) regards the meaning of the word “security”. The essence of Mr McClelland’s submissions was that we should have regard to the adequacy of the security. That is the focus of other cases. We do not agree. Section 72M(1) does not conflate identification of what is given as a security with the adequacy of what is given. The two are quite separate.

1. In so far as they are relevant, the ordinary meanings of the word “security” are:

   “… 7 something given as a guarantee, especially to a creditor giving them a right to recover a debt. …”[53]

   The Macquarie Dictionary, to which Mr Maat referred, includes similar meanings:

   “5. an assurance; guarantee. 6. Law b. something given or deposited as surety for the fulfilment of a promise or an obligation, the payment of a debt, etc.  B.  one who becomes surety for another …”[54]

   These meanings would seem to be apposite in this case. Section 72M(1) provides for a person to give such assurance or guarantee, and so security, as the Registrar considers appropriate for the assurance that the person will return to Australia by a day agreed upon and specified in the DAC. We will return to the form of that security in these reasons.

   [53] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

   [54] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd (Macquarie)

B.Who is the “person” who may give security?

1. Putting aside the appropriateness and nature of any security for the moment, s 72M(1) provides that “a person” “may give” (i.e. provide) a “security” (i.e. an assurance or guarantee or a surety for the performance of a promise) “for the person’s return to Australia” by a date “agreed by the person and the Registrar” (emphasis added).  The change from the indefinite article “a” with “person” at the beginning of the provision to the definite article “the” for the remaining two references to the person clearly indicate that the person who may give security is the person who wishes to travel outside Australia on a DAC and who has applied for it.  That this is the correct interpretation is underlined by reference to s 72L when it provides for the circumstances in which the Registrar must issue a DAC.  It applies when “a person in respect of whom a departure prohibition order is in force” has applied for a DAC under s 72K (emphasis added).  That is the effect of s 72L(1).  Sections 72L(2) and (3) are then drafted using the definite article “the” to refer to the person.  Section 72L(2)(a) requires consideration to be given to what it is likely “the person” will do if a DAC is issued and s 72L(2)(b) requires consideration of whether it is not necessary for “the person to give security under section 72M for the person’s return to Australia.” (emphasis added). 

C.When does a person “give” security?

1. In s 72M(1), the word “give” is used as a transitive verb.  In the way in which it is used in that provision, its ordinary meanings include:

   “1 to transfer ownership of something; to transfer possession of something temporarily □ gave him my watch. □ Give me your bags.  2 to provide or administer □ give advice □ give medicine.  3 to produce □ Cows give milk. 4 to perform (an action, service, etc) □ give a smile □ She gave a lecture on beetles. 5 to pay □ gave £20 for it. …”[55]

   [55] Chambers

1. If the word “give” has its ordinary meaning, s 72M(1) must be interpreted as requiring the person who has applied for a DAC to be the person who actually provides the security him or herself whether by producing or transferring something that can be regarded as security. That is consistent with the scheme of Division 4 of Part XVA relating to DPOs. The person in respect of whom a DPO is in force is providing security to assure his or her return. It cannot be given by a third person on the person’s behalf for it is not then given by the person who has applied for a DAC.

1. We have reached our conclusion on the basis of the interpretation of s 72M(1) and related provisions but we note that our view accords with that necessarily underpinning the conclusion reached by Deputy President McMahon on the evidence in Re Eid and Federal Commissioner of Taxation.[56] Mr Eid had said that he had little by way of funds in Australia but friends had offered security over four houses to the value of $340,000 to ensure his return to Australia. The security was offered under s 14U(1)(b)(ii) of the Taxation Administration Act 1953 (TA Act) in relation to Mr Eid’s application to the Commissioner of Taxation (Commissioner) that he be permitted to travel overseas despite the Commissioner’s having previously made a DPO under s 14S of the TA Act.  The provisions relating to DPOs and DAC’s are set out in Part IVA of that legislation and are in similar terms to those in the CSRC Act.  Deputy President McMahon gave four reasons for finding that the securities were not appropriate under s 14U(1)(b)(i) of Part IVA of the TA Act[57] but it is the fourth that is relevant here.  He said:

   “… [t]he applicant has not ‘given’ security, nor is he to give that security in the future.  Others are to give security voluntarily. …”[58]

   [56] [1998] AATA 73; (1998) 38 ATR 1066

   [57] The provision requires the Commissioner to consider whether “the person has given security under subsection (2) to the satisfaction of the Commissioner for the person’s return to Australia”.  Subsection 14U(2)(a) provided that “a person may give security, by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed between the person and the Commissioner”.

   [58] [1998] AATA 73; (1998) 38 ATR 1066 at [23]; 1071

1. That does not mean that the person may not borrow what he or she then gives as security. If what is given is the person’s to give, it will be taken to be given by that person under s 72M. The moneys borrowed by Mr Wetzell from his brother to give as security to the Registrar were his to give. As a result of his borrowing that money, he was under an obligation to repay his brother but that did not detract from those moneys being his to give to the Registrar as security.[59]

   [59] Re Wetzell and Child Support Registrar [2005] AATA 607 at [14]; Deputy President Constance

1. There was some discussion at the hearing about a bail bond and the fact that a person may be granted bail either on his own surety on certain conditions or on sureties given by persons other than the person being bailed.  That is so and both forms of surety are provided for in Victoria under the Bail Act 1977 (Vic).[60]  That is a very different scheme and cannot influence the interpretation of the CSRC Act.

   [60] See particularly s 9.

D.       Why does a person give security?

1. The reason why it is necessary to assure the return of the person who is the subject of a DPO is found in the reason why that DPO was made in the first place.  The person who is the subject of a DPO has a child support liability and has not made satisfactory arrangements to discharge it wholly.  Furthermore, as the criteria specified in s 72D are cumulative, the Registrar must, in making the DPO, believe on reasonable grounds that it is desirable to make the order for the purposes of ensuring that the person does not leave Australia without wholly discharging the child support liability or making satisfactory arrangements to do so.  That criterion appears in s 72D(1)(d).  It is a criterion intended, in the words of Monahan FM in Onder v Child Support Registrar:[61]

   “… to act as an incentive for him [the father] to pay the child support liability. …”[62]

   The same rationale would seem to underpin the requirement that a person applying for a DAC must give security under s 72M(1) for a similar reason. That reason is to ensure that the person returns for the purpose of discharging his or her child support liability.[63]

[61] [2011] FMCAfam 430; (2011) 250 FLR 345

[62] [2011] FMCAfam 430; (2011) 250 FLR 345 at [91]; 365

[63] Were the person not to return to Australia and the security forfeited, the funds forfeited would not be used to offset the amount of that person’s child support liability.  That follows from the provisions in the CSRC Act relating to the collection and payment of moneys in respect of that liability.  Pivotal to those provisions is the Child Support Account.  As appears from our summary of the provisions relating to that account at […]-[…] in the Attachment to these reasons, s 74 provides that only certain moneys that, broadly speaking, are made in payment of child support debts, may be paid into that account.  We have not set out all of the provisions relating to the account but no provision has been made in the CSRC Act for moneys to be paid into that account regardless of the source of those moneys.  In particular, no provision is made for moneys to be paid into the Child Support Account were a person to give security in the form of a deposit of money and fail to return to Australia.  The moneys forfeited would, as Mr Maat indicated at the hearing, be paid into the Consolidated Revenue Fund.  At […] in the Attachment, we have summarised the constitutional and legislative provisions leading to that conclusion.  Any money forfeited would not be paid into the Child Support Account to be set off against the person’s child support liability.

1. That this is indeed the rationale gains further strength from s 72L(2).  It permits the Registrar to issue a DAC when satisfied that the person is likely to return to Australia within an appropriate period, the person has no child support liability or has made arrangements to discharge it wholly or the child support liability is irrevocable.  Once the child support liability has been, or will be, wholly discharged or that liability is irrevocable, the security is no longer necessary.  The corollary of that proposition is that, while the child support liability continues and is not regarded as irrevocable, security is necessary.

E.        What form may security take?

1. Under s 72M(1), there are three qualities that the security must have. The first relates to its having been given. We have dealt with that above. The second is it is a security considered “appropriate” by the Registrar.  The third is that the security is by “bond, deposit or any other means …”. It is easy to state the three qualities separately but, in so far as the second and third are concerned, identification of what is appropriate security tends to merge with identification of what may be offered as security. Mr McClelland suggested that it did but his focus was more on the evidentiary side. We agree with him to that extent but we are yet to reach that stage of our consideration. We are still at the preceding stage which requires us to consider the constraints that exist in s 72M or in the CSRC Act or in the scheme in identifying when the security given by a person will be considered “appropriate”.  That consideration must precede any consideration of anything that is given as security in the circumstances of this case.

1. The ordinary meanings of the words “bond” and “deposit” both suggest either cash or binding promises to pay cash.  Beginning with the word “bond”, it is a “written agreement to pay money …”[64] or, more usually, “a sealed document under which a person or corporation guarantees to pay a stated sum of money on or before a specified day. … any written agreement under seal. … a contract under seal to pay a debt, or to pay a sum of money in default of fulfilling some condition. …”.[65]  A “deposit” in the context of s 72M(1) is a sum of money.[66] 

   [64] Chambers

   [65] Macquarie

   [66] Chambers and Macquarie

1. Section 72M(1) does not suggest that what the person gives as security is limited to a bond or a deposit for it explicitly states that it may be “by any other means”.  We have considered whether we should interpret those words by reference to the ejusdem generis rule of statutory interpretation.  “The rule is that general words may be restricted to the same genus as the specific words that precede them …”.[67]  That means that:

   “… Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. … [W]here it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things ‘possess some common and dominant feature’ so that they can be described as constituting a genus distinguished by that feature.

   …

   … It is not sufficient to show that there are two or more such genera …”.[68]

   [67] The King v Regos and Morgan (1947) 74 CLR 613; Latham CJ, Rich, Starke and McTiernan JJ at 623 per Latham CJ

   [68] The King v Regos and Morgan (1947) 74 CLR 613 at 623-624 per Latham CJ

1. There is a single genus, or class, to which the words “bond” and “deposit” belong and that is that of cash or of being convertible to cash.  Rather than rely on that as the sole basis of our consideration, however, we have had regard to the context in which it appears together with the purpose of the provision and the part it plays in the scheme provided in the CSRC Act and the CSA Act.  When we do that, we are mindful that the security that is given must not only be a “by bond, deposit or any other means” but that it must be a security considered “appropriate” by the Registrar.  Whether the Registrar has the power to deal with what is offered as a security will have some relevance in deciding what security is appropriate. 

1. The Registrar’s powers are spelled out under the CSRC Act. We have referred already to his powers in relation to the Child Support Account. In the Attachment to these reasons, which also forms part of them, we have referred to the court’s powers. We do not need to decide the matter in this case but simply note that nothing in those powers appears to authorise the Registrar to take steps to enforce a charge or foreclose a mortgage over real estate. Nothing appears to authorise the Registrar to go to a court to do so. Power given to the courts under Rule 20.16 of the Family Law Rules 2004 can be exercised to issue an Enforcement Warrant but that is in relation to enforcement of a child support liability.  It does not extend to enforcement of a charge given as security to ensure the payer’s return to Australia if permitted to leave the country.

1. Even if the Registrar has power to take the necessary steps and even if a charge has been given by the person applying for a DAC, we would have doubts whether we would consider it “appropriate” within the meaning of s 72M(1). As Mr McClelland submitted, there is no question that a deed is sufficient to create a charge over real estate without the need for any consideration to be given. We do not doubt that in Victoria the charge could be registered under the Property Law Act 1958 (Vic) (PL Act).  Where our doubts arise is in relation to the priority of the charge for it would not have priority over any other deed, conveyance or other instrument registered after it.  It would not have priority because priority is only accorded to those:

   “… deeds conveyances and other instruments in writing as aforesaid, if made and executed bona fide and for valuable consideration and registered in conformity with the provisions of this Act …” (emphasis added)[69]

A charge given by a person as security for another person’s, or even his or her, return to Australia is not one given for valuable consideration.  That is to say, the Registrar has not given valuable consideration for the deed of charge executed by the person.  Any efforts by the Child Support Registrar to enforce the charge could easily be frustrated or defeated by the registration of an intervening charge or mortgage given for valuable consideration.

[69] PL Act; s 6

Has Mr Kay given the Registrar appropriate security?

1. For the reasons we have given, we do not consider that Mr Kay has given appropriate security to the Registrar. It is Combourne Pty Ltd that has offered to give security and, on our understanding of s 72M(1), a third person may not give security on behalf of the person seeking a DAC. Only the applicant for a DAC may give security.

1. Even if Combourne Pty Ltd could give security, we are not satisfied that it is appropriate security for Mr Kay’s return to Australia.  Our reasons are threefold.  First, there are serious doubts whether the Registrar would have power to enforce the charge.  Assuming our doubts are not well founded, the second is this.  Even though there is sufficient equity in the property to cover the amount of Mr Kay’s existing child support debt at this time, the assurance that the equity is sufficient to ensure his return could easily lose its gloss were other charges or mortgages given for valuable consideration as they would take priority.  Our third reason has already been expressed by Deputy President McMahon in Re Eid and Federal Commissioner of Taxation:

   “… There is no evidence of any financial impairment which the applicant is prepared to undergo in order to secure the Commissioner’s satisfaction that he will return.  I see no reason in logic, nor has any reason been given in the evidence why the applicant should return to Australia simply because four other people, or groups of people, have given security over their assets. … The fact is, that on the face of the proposals, there is nothing before me which would tend to secure the applicant’s return to Australia simply by virtue of the charges given over the four houses.”[70]

   [70] [1998] AATA 73; (1998) 38 ATR 1066 at [23]; 1071-1072

Humanitarian grounds and Australia’s national interest

1. That means that the Registrar is not obliged to issue a DAC under s 72L(3)(a).  Section 72L(3)(b) sets out another set of circumstances in which the Registrar must do so.  They raise humanitarian and national interest issues but, before either the Registrar or we are required to consider them, we must be satisfied that “… the person is unable to give such security …” i.e. security under s 72M. We are not in a position to make that finding. All that we have been given is evidence of the deed of charge that Combourne Pty Ltd is prepared to execute over its real estate. Mr Kay did not choose to give evidence. That is his prerogative but we have no evidentiary basis on which we are satisfied that he is unable to give security under s 72M of the CSRC Act. Therefore, we have no basis on which to consider whether he would otherwise be entitled to a DAC under s 72L(3)(b) of the CSRC Act.

DECISION

1. For these reasons, we affirm the decision of the Child Support Registrar dated 28 May 2015 refusing to issue a Departure Authorisation Certificate.

LEGISLATIVE FRAMEWORK

Purpose of the child support scheme

1. The Child Support Assessment Act 1988 (CSA Act) provides for determination of the financial support that is payable by parents for their children.  Its provisions are predicated upon Parliament’s understanding of parents’ duty to maintain their children.  A general statement of the duty is found in s 3(1):

   “The parents of a child have the primary duty to maintain the child.”

Section 3(2) expands upon the general statement when it provides:

“Without limiting subsection (1), the duty of a parent to maintain a child:

(a)is not of lower priority than the duty of the parent to maintain any other child or another person; and

(b)has priority over all other commitments of the parent other than commitments necessary to enable the parent to support:

(i)himself or herself; and

(ii)any other child or another person that the person has a duty to maintain; and

(c)is not affected by:

(i)the duty of any other person to maintain the child; or

(ii)any entitlement of the child or another person to an income tested pension, allowance or benefit.”

1. In light of this statement of duty, the principal object of the CSA Act is “… to ensure that children receive a proper level of financial support from their parents.”[71]  Factors that shape what is regarded as a proper level of financial support are apparent in s 4(2) which provides:

   “Particular objects of this Act include ensuring:

   (a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and

   (b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and

   (c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and

   (d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and

   (e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.”

   [71] CSA Act; s 4(1)

1. CSRC Act makes provision for the collection of certain periodic maintenance payments, including child support assessed under the CSA Act.  Its principal objects are to ensure:

   “(a)     that children receive from their parents the financial support that the parents are liable to provide; and

   (b)that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and

   (c)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.”[72]

   [72] CSRC Act; s 3

Registration of a registrable maintenance liability

1. In general terms, provision is made in Part III of the CSRC Act for registration of a liability to pay maintenance.  A “registrable maintenance liability” means a maintenance liability that is, under ss 17, 17A, 18 or 18A of the CSRC Act, a registrable maintenance liability.[73]  Taking s 17 as an example, a liability is generally a registrable maintenance liability if it is a liability to pay a periodic amount for the maintenance of a child and it arises either under a court order or a court registered maintenance agreement or is a collection agency maintenance liability.  A liability is also a registrable maintenance liability if it arises under a child support assessment made under the Child Support (Assessment) Act 1989.  In both instances, qualifications to the general statement of principle are found in s 19 but they are not relevant. 

[73] CSRC Act; s 4(1)

1. If a registrable maintenance liability is registered by the Child Support Registrar under the CSRC Act, it becomes an “enforceable maintenance liability” i.e. a registered maintenance liability that is enforceable under this Act.[74]  The Registrar is required to enter details of each enforceable maintenance liability in the Child Support Register (Register).[75]  The Registrar may vary, correct and delete entries in the Register in accordance with ss 39B to 42B.

   [74] CSRC Act; s 4(1)

   [75] CSRC Act; s 26

Payment of an enforceable maintenance liability

1. Payment of an enforceable maintenance liability may come about in various ways.  It may come about by way of direct payment to the payee[76] or to a third person.[77]  In those instances, a payment in a form, other than money, by the payer or a transfer of property or right by the payer may be taken to be an amount paid in complete or partial settlement of an amount payable under an enforceable maintenance liability.  It will only be taken to be such, though, “if both the payer and the payee of an enforceable maintenance agreement so intend.”[78]  The amount of the payment that is taken to have been made in this way may be an amount agreed between the payer and the payee or, if there is no agreement, an amount determined by the Registrar.[79]

   [76] CSRC Act; s 71

   [77] CSRC Act; s 71A

   [78] CSRC Act; s 71B(1)

   [79] CSRC Act; s 71B(2)

1. More commonly payment is made by way of the Registrar.  Although payment of an enforceable maintenance liability may be made by voluntary payment arrangements with the Registrar,[80] the general way in which an enforceable maintenance liability is collected by the Registrar is by deduction from the salary or wages of the person liable to pay the amount (payer).  That deduction, known as an “employer withholding”, is made under the authority of Part IV of the CSRC Act but it is subject to certain qualifications.  One qualification, for example, occurs if the payer elects that the employer withholding is not to apply in relation to the liability, the Registrar may decide that the employer withholding does not apply in relation to the liability but only if satisfied that the payer is likely to make timely payments to him or her under the liability.[81]  Section 47 imposes duties on the employer to forward the deducted amounts to the Child Support Registrar and to provide details relating to it.  Once payment is made, the Registrar must deal with that payment in the manner specified under Part V of the CSRC Act.

   [80] CSRC Act; s 44(1)

   [81] CSRC Act; s 44(1)  If the Registrar does not collect amounts due to the Commonwealth under, or in relation to an enforceable maintenance liability by deduction from salary or wages, the payer may elect to specify a payment period and to specify the day from which payment will start: CSRC Act; s 65A.  If the Registrar is satisfied that it will be more convenient to the payer to accrue debts in relation to the period which has been elected, the Registrar must vary the particulars in the Register to reflect the election: CSRC Act; s 65B.

Child support debts and their recovery

1. Registration of a registrable maintenance liability under the CSRC Act has the consequence that amounts payable under a child support assessment, court order, maintenance agreement, maintenance order or maintenance assessment under which the liability arose are debts due to the Commonwealth by the payer in accordance with the liability entered in the Register.[82]  Once registered, the only avenue open to the payee of the liability to enforce payment of the amount payable under the liability is by taking action under s 113A to recover the debt.[83]  The Registrar has power to sue for and recover the debt under s 113 either in a court having jurisdiction for the recovery of debts up to the amount of the debt or in a court having jurisdiction under the CSRC Act.[84]

   [82] “If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order, maintenance agreement, maintenance order or maintenance assessment under which the liability arose are debts due to the Commonwealth by the payer in accordance with the particulars of the liability in the Child Support Register.”: CSRC Act; s 30(1).

   [83] CSRC Act; s 30(3)

   [84] CSRC Act; s 113(1)(c)

1. Part V of the CSRC Act, regulates the payment and recovery of child support debts.  A “child support debt” is a debt that is due to the Commonwealth under s 30.[85]  Section 66(1) provides:

   “An amount that becomes a child support debt in respect of a day in an initial period is due and payable on the seventh day of the calendar month following that day.”

The “initial period” means the period entered in the Register under s 26(2)(a).[86]  That provision requires the entry in the Register to show the initial period at which an amount is payable in respect of the liability.  That period is determined by the Registrar under s 26C.  Various scenarios are provided for but we will deal only with that in which the Registrar is about to register the liability.  In that scenario, it stars on the day on which the liability first becomes enforceable under the CSRC Act and ends on the day before the start of the day specified either by the Registrar under s 26A(4) or by the payer of the liability under s 26B(4), as the case may be.[87] 

[85] CSRC Act; s 4(1) and see s 30 at FN 82 above.

[86] CSRC Act; s 4(1)

[87] Section 26A is applicable when the Registrar enters the payment period in the Register as he or she will collect by deduction from salary or wages.  Section 26B is applicable when the payment period is entered in the Register under s 26(2)(b) as the payer makes voluntary payments.

1. In summary, where a person owes or holds money for or on account of a child support debtor, the Registrar may give that person a written notice requiring the person to pay the Registrar that amount or such part of it as satisfies the debt.[88]  The Registrar may also recover a child support debt from social security payments, social security benefits[89] or veterans’ pensions and allowances of which a payer is in receipt.[90]  A child support debt, or part of it, may be recovered from family tax benefit to which the payer may be entitled in respect of his or her designated child support child.[91]  Where a child support debtor is not physically present in Australia but derives income or payments of a capital nature from a source in Australia, the Registrar may give notice to recover money from any person who is in Australia and who receives, controls or disposes any of the debtor’s money.[92] 

   [88] CSRC Act; s 72A

   [89] CSRC Act; s 72AA

   [90] CSRC Act; s 72AC

   [91] CSRC Act; s 72AB

   [92] CSRC Act; s 72B

1. Section 72C of the CSRC Act has a different emphasis.  It provides that the court may, on its own motion or on the application of the Registrar, either set aside an instrument or disposition that has been made or restrain their making by, or on behalf of, or by direction or in the interest of a payer of an enforceable maintenance liability.[93]  The court may exercise those powers if satisfied that the instrument or disposition has been made, or is proposed to be made, to reduce or defeat the payer’s ability to pay child support or, if there is an enforceable maintenance liability in respect of the payer, to pay any child support under that liability or to meet it.[94]  The court may order that any money or any real or personal property dealt with by any such instrument or disposition may be taken in execution, or charged with the payment, of such amounts for costs or child support as the court directs.  If the property has been sold, the court may direct that the proceeds of the sale be paid into court to abide by its order.[95]  The court must have regard to the interests of a bona fide purchaser or other interested person and must make any order it considers proper for the protection of those persons.[96]  The court may also order the payer, or any person colluding with the payer in the disposition or proposed disposition, to pay costs incurred by the payee, a bona fide purchaser or the Registrar in relation to that disposition or proposed disposition or proceedings under s 72C.[97]

   [93] CSRC Act; s 72C(1) A “disposition” includes a sale and a gift: CSRC Act; s 72C(6).

   [94] CSRC Act; s 72C(2)

   [95] CSRC Act; s 72C(3)

   [96] CSRC Act; s 72C(4)

   [97] CSRC Act; ss 72C(5) and (6)

1. Division 3 of Part VIII of the CSRC Act provides for an appeal on a question of law to be made to certain courts from decisions made by the SSAT on review under Part VIIA.  Those courts include the Family Court, the Federal Circuit Court and certain State and Territory courts.[98]  Except for Part X, the provisions of the Family Law Act 1975 and the Rules of Court and related Federal Circuit Court Rules apply to proceedings under the CSRC Act.[99]  Parts VIII and VIIIA set out the courts’ powers on review.

   [98] CSRC Act; ss 4(1) and 104

   [99] CSRC Act; s 105

1. Part VIIIB sets out other provisions relating to courts.  Section 111B sets out the powers that a court has under the CSRC Act.  They include powers to order that a specified transfer or settlement of property be made.[100]

   [100] CSRC Act; s 111B(1)(c)

1. Part IX of the CSRC Act provides for the recovery of debts due to the Commonwealth under the Act in relation to a registered maintenance liability.  Recovery may be effected by the Registrar under s 113 or by the payee under s 113A.

Child Support Account

A.       Provisions of the CSRC Act

1. Section 74 of Part VI of the CSRC Act provides for amounts that may be credited to an account known as the “Child Support Account”.  They are:

   “(a)     amounts equal to amounts received by the Registrar in payment of child support debts (including amounts received from employers under paragraph 47(1)(a));

   (b)amounts equal to amounts received by the Registrar from payers of enforceable maintenance liabilities as voluntary payments for transmission to the payee of the liabilities;

   (c)amounts equal to amounts that are to be debited from the Account in making payments mentioned in paragraph 75(1)(c).”

1. The purposes of the Child Support Account are threefold:

   “(a)     to make payments under subsection 76(1) to payees of the registered maintenance liabilities; and

   (b)to make payments to the payees of enforceable maintenance liabilities of amounts received from the payers of the liabilities as voluntary payments for transmission to the payees; and

   (c)to make other payments that the Registrar has determined for the purposes of this Act are payable to persons in respect of child support.”[101]

   [101] CSRC Act; s 75(1)

B.       Constitutional foundations of Child Support Account

1. Section 81 of The Commonwealth Constitution requires that:

   “All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.”

Section 83 reads in part:

“No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

…”

1. As originally enacted, s 73 of the CSRC Act provided that:

   “(1)      A reserve by the name of the Child Support Reserve is established by this subsection.

   (2) The Reserve is a component of the Reserved Money Fund.”

1. That Child Support Reserve was continued in existence by the Financial Management Legislation Amendment Act 1999 (FMLA Act).[102]  That account was a Special Account for the purposes of the Financial Management and Accountability Act 1997 (FMA Act).[103]  It was known as the Child Support Account.[104]  The effect of s 21 of the FMA Act was that the Consolidated Revenue Fund was appropriated for expenditure for the purposes for which the Child Support Account was established.  Since the Public Governance, Performance and Accountability Act 2013 came into force, the Child Support Account has been a special account within the meaning of s 80 of that enactment.  Section 80 is to the same effect as s 21 of the FMA Act although s 80(4) makes an additional reference to crediting an amount to a Special Account.

   [102] Financial Management Legislation Amendment Act 1999; s 5(3) and see also s 3

   [103] FMLA Act; s 5(4)

   [104] FMA Act; s 5(5)

I certify that the eighty two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and Dr D Cremean, Senior Member.

Signed:            ……[sgd]............................................

Associate

Date of Hearing  9 June 2015

Date of Last Submission  11 June 2015

Date of Decision  17 June 2015

Solicitor for the Applicant  Mr John McClelland

Carew Gartland McClelland Solicitors

Solicitor for the Respondent                 Mr Kasper Maat

Australian Government Solicitor