Luton v Lessels & Anor

[2001] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Registry
  No C40 of 1995

B e t w e e n -

ANTHONY IAN LUTON

Plaintiff

and

GILLIAN GLADYS LESSELS

First Defendant

THE CHILD SUPPORT REGISTRAR

Second Defendant

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 OCTOBER 2001, AT 10.22 AM

Copyright in the High Court of Australia

MR G.C. CORR:   May it please the Court, I appear for the plaintiff, together with my learned friend, MS G.K.Y. WONG.  (instructed by Tjakamarra-Forrest)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:   May it please the Court, I appear for the second respondent with my learned friend, MR C.J. HORAN.  (instructed by Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If it please the Court, I appear with my learned friend, MS A.S. FIELD, for the Attorney‑General for South Australia intervening in support of the second respondent.  (instructed by Crown Solicitor for South Australia)

MR R.M. MITCHELL:   May it please the Court, I appear for the Attorney‑General for Western Australia intervening in support of the defendant.  (instructed by the Crown Solicitor for Western Australia)

GLEESON CJ:   There is a certificate from the Deputy Registrar to the effect that she has been informed by the solicitors for the first defendant that the first defendant does not wish to be represented at the hearing of the case stated and will submit to the order of the Court save as to costs.  Yes, Mr Corr.

MR CORR:   Thank you, your Honour.  This is basically a determination of how, or if, it is possible for the Commonwealth to require one citizen to pay money to another citizen.  It is submitted by the plaintiff in this matter that there are two ways in which money can pass from one citizen to another:  either by means of the Commonwealth taxing that person and then applying that money to the benefit of the second person or, alternatively, if there have been rights which have been created by the Commonwealth for that second person, that there is a judicial determination of the rights between the two parties by a properly constituted court and that thereafter that the payments are made to them.

KIRBY J:   That is not the whole universe because money can pass from one citizen to another by a gift, by will, or various other forms.

MR CORR:   Yes, but not by compulsion.  The Commonwealth cannot compel a person to make a gift or to make a will in favour of another person.  It is the matter of compulsion that raises these two possibilities being available.  We would submit that that is, in fact, a closed universe, that it is not possible otherwise for money to pass from one citizen to another by some means of compulsion.  We would submit it is not possible for just an arm of the Executive Government to say, “We will take your money and we will give it to citizen B”.

That is the case in a nutshell, and we are submitting that this is what the Child Support Agency purports to do.  It is not part of the executive arm of government and it purports to take money from citizen A, in this case Mr Luton, and give it to citizen B, Ms Lessels, on the basis that at some stage in the past they had a relationship and a child was born of that relationship.  It is not something which is determining anything for the future.  It is making a determination on facts which exist at the moment.  That is purely and simply what the case is about and it is difficult to go any further than that just to say the Commonwealth has a limited power to compel the payment of money by a citizen.

KIRBY J:   It is not quite as simple as that, as your written submissions acknowledge, because before anything is done by the Commonwealth there is the Commonwealth affixation of an obligation on your client.

MR CORR:   Yes, that is correct.

KIRBY J:   And that is said to be in the scheme of the legislation – and I agree with your submissions, they have to be looked at as a whole.  But that is the foundation on which the obligation is based.

MR CORR:   Yes, that is right.  It creates an obligation on the non‑custodial parent or, in some cases, two non‑custodial parents, to pay for the benefit of the person who is, in fact, looking after the child.  But that is setting down a set of rights and obligations which the Child Support Agency then purports to make a determination as to the rights and obligations between those two citizens, that if it is making a determination on already existing rights and obligations, then it is exercising judicial power.  It is not a fee for service.  It is not something where it is setting a relationship of, in future citizen A will do something in return, something will be paid to citizen B in the way that, for example, an award of wages is determined where there is an agreement that a person will work and they will be remunerated for it.

There is nothing in future, except the obligation to pay money.  There are no rights conferred on the non-custodial parent.  They do not have any rights to visit.  That is something which is completely at the control of the Family Court or it may be an agreement between the two parties, but there is no benefit conferred on the non-custodial parent. 

We would submit that it is possible for a tax to be levied which collects money on the basis of people being non-custodial parents and accumulates that money and can then disseminate money however it wishes. The Commonwealth can say that it will go to the custodial parent in the same amount as has being collected from the non‑custodial parent or some other amount. But in that instance, the Act itself has to comply with section 55 of the Constitution and just deal with matters imposing taxation. The particular Acts do not, they go further than that. To the extent that they go further than dealing with the imposition of taxation, they are invalid according to section 55 of the Constitution.

KIRBY J:   Do you not have to take us, as your submissions do, to the scheme of the Act?  I am not sure that I have it entirely in my mind as to whether the scheme is that the Commonwealth accepts an obligation to pay child support and this is a way of, in a sense, reducing the burden on the Commonwealth, or whether this is an entirely self-funding scheme, or is intended to be.  It is not entirely clear to me.  I think we are just going to have to have a look at the statute.

MR CORR:   Yes, that it is something where the Commonwealth collects that amount of money by means of creating it as a debt due to the Commonwealth by the conversion of – there is the assessment of the amount which is payable by the non-custodial parent.  That is done by the Registrar.  It is entered on the register; that is then converted to a debt which is due and payable to the Commonwealth by the operation, I believe, of section 30 of the Registration and Collection Act, which extinguishes any right for the payee, ie the non-custodial parent, to enforce payment.  Instead, the Commonwealth can enforce the payment.  There are various ways in which that can be done.  One of the most common is that which is covered in Part IV of the Registration and Collection Act, namely, the deduction from salary and wages, where the employer of the non-custodial parent is informed that there is an order, and is required to deduct moneys from their salary or wages and pay it to the agency.  There are penalties which can be imposed on the employer if they do not comply with that. 

KIRBY J:   I am sorry to ask you this question.  It may be in your written submissions, but I have not really absorbed fully the legislation.  Is the scheme that the Commonwealth pays every child, regardless of whether they have parents who are in employment or otherwise able to fund it, child support? 

MR CORR:   No, that is not the situation.

KIRBY J:   So, the only people who get the child support are those in respect of whom an order is made against a parent and the parent has paid into consolidated revenue the amount and then the Commonwealth becomes a sort of conduit for the money, is that it?  Effectively the Commonwealth is the recoverer from employers of the money?

MR CORR:   Yes, that is correct.

KIRBY J:   Instead of having a parent, say a deserted wife or husband, being left to their own resources to recover it, they have the benefit of the power and resources of the Commonwealth and the scheme of the Act to make sure that the money is coughed up?

MR CORR:   Yes, that is correct.  That was the obvious intention of this Act.  The obvious concern of the Parliament was to ensure that such orders could be enforced, and I think there was a consideration that it was reasonably difficult for non‑custodial parents to do so.  While that particular concern or policy may be quite reasonable, the question is whether it can be done in a constitutional manner; whether it is possible for an administrative agency such as the Child Support Agency to do that of its own volition.

HAYNE J:   Is that the question?  Is not the question rather whether the particular legislative scheme that we have for consideration is valid or not valid?  To speak in generalities may be convenient, but do we not have to begin and end at the legislation?

MR CORR:   Yes, that is correct, your Honour.  What I was going to submit was that prior to the passage of this particular legislation, the way in which these obligations were enforced was through the mechanism of a court.  What this legislation and the amendments to the Family Law Act said was that you could not then go to a court if an application could be made to the Child Support Agency.  That is what is now required to be done.  There were carryover provisions where a person who had already had an order made by an appropriate court could register that with the Child Support Agency and it would be collected by them, but that is not the situation in this particular case.  This is a situation where the child was born after the coming into force of the Act.

KIRBY J:   You do not raise any question as to the attachment of the Act?  You do not raise any question as to the fact that the Act attaches to your client?

MR CORR:   No.

KIRBY J:   They have not seen that.

MR CORR:   No.

KIRBY J:   We are not concerned with that point.  Nor do you raise a question touched on in the South Australian submissions as to the power of the Federal Parliament under the referral of power to enact this law.

MR CORR:   No, that has not been.

KIRBY J:   So that the only two points you raise are whether they have gone about it the right way.

MR CORR:   Yes, that is correct.

KIRBY J:   I would have thought what you have to do is take us through, as Justice Hayne said, the detail of the Act, at least so far as we can understand it, then go to your two points.

MR CORR:   Yes, thank you.  If you go to the submissions, your Honour, to paragraph 3, that it is either an eligible carer or a liable parent.  The person who has custody of the child need not necessarily be the parent – it can be a grandparent or it can be somebody else – can apply for an administrative assessment of child support under sections 25 and 25A of the Assessment Act.  There are various ways in which that has to comply with the objects of that particular Act.  If the application has been properly made, the Registrar must accept it; the affected persons have to be notified and the Registrar then determines what the liability is.

HAYNE J:   As I understand it, you do not challenge the validity of those provisions of the Assessment Act, is that right?

MR CORR:   The assessing of the details – it is only when it starts becoming enforceable that an administrative officer can make any number of determinations and can say you would be liable to payment of so much, and so forth.  It is only when such a determination starts being enforced, when there is actually the obligation to pay.  It may well be that a scheme whereby parents can work out between themselves with the assistance of a registrar as to what should be the appropriate amount to pay would be quite reasonable.  But when the element of compulsion is added to that, that is when we would submit that you run into the constitutional difficulties.

HAYNE J:   The only order that you seek in respect of the Assessment Act is a declaration that Part 6A is invalid, that is, the provisions between 98A and 98ZJ?

MR CORR:   Yes, that is correct.  Those are ones of departure from the administrative assessment, that rather than the Registrar looking at what is contained in the Act itself and working out according to a formula what is owed there, the Registrar can make variations to what is paid, taking into account a number of issues.  The Registrar must be satisfied as to certain matters which are listed in 98C, and those are basically whether it was:

(A)  just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(B)  otherwise proper;

The basis, as I understand for that was that in certain circumstances what purports to be the income of the non‑custodial parent may be artificially low because of the person taking advantage of various tax minimisation schemes or it is tied up in various trusts and so forth.  So the Registrar is entitled, if this part is open to the Registrar, to make a variation on the amount payable, taking into account, as I said, what is just and equitable as regards the child, et cetera, so that what might be considered artificial schemes do not reduce the liability of the non‑custodial parent significantly below that which should be paid and also to maintain the child in a proper manner.

So, we would say that that particular part of the Assessment Act is one where the Registrar is quite clearly exercising a judicial power, particularly where the determination has already been made and the Registrar is revisiting it.

HAYNE J:   I am sorry to take you back and perhaps I am three furlongs behind the pace, but can I just understand this?  Four questions are referred to a Full Court, the first of which is cast in quite general terms.  “Is the scheme. . .established a tax?”  Your submissions in the orders that are sought express orders that would be apt for the final orders on reference back of the answers to the stated questions to a single judge, but are declarations that relate to only one part of the Assessment Act?  Am I right in understanding that that is the limit of your contention about invalidity of the Assessment Act?

MR CORR:   No.  I think that perhaps they were not drafted as broadly as they should be, your Honour, and that the answers then should be in the – the orders which we would be seeking would be in relation to the case stated, that the first answer be “yes” and the second “yes” and although we obviously have posed them as being alternative propositions that, if the answer to those two is “yes”, then the answer to the third question would be “not necessary to answer”.  If the answer to the questions one and two is “no”, then we would ask that the answer to question three should be “yes”.

HAYNE J:   But one possible outcome of this litigation presumably is that there are partial answers, that is to say that an answer is given that the Act is invalid as to part.  Now, what is your contention?  Is your primary contention that the Assessment Act and the Registration and Collection Act are wholly invalid?  Do you have some subsidiary contention about partial invalidity?  What is the contention you propound?

MR CORR: Yes. If it is found invalid because of section 55, then I think as we have propounded in our submissions at paragraph 36, all the provisions, other than sections 17, 24A and 30 of the Child Support (Registration and Collection) Act have no effect because of section 55 of the Constitution. So the remaining provisions would be invalid. But other than that, the Assessment Act is not part of the argument in relation to taxation. The broad statement in the question was to be able to look at the scheme as a whole and that we would be submitting the appropriate partial response would be that contained within our submissions at that paragraph.

KIRBY J:   I think your submissions acknowledge that in some of these cases in the past relating to section 55 the Court has performed a severance operation, struck down amending Acts.

MR CORR:   Yes, that is correct.

KIRBY J:   Do you have a fall-back position in relation to severance on the section 55 argument or not?

MR CORR:   It is fairly difficult for it to be severable, the way that the Registration and Collection Act is cast at the moment, your Honour, because of the fact that there are only a small number of provisions – those which I mentioned previously are, in fact, able to be considered to be still valid, those of 17, 24A and 30.

KIRBY J:   Have you dug out the Minister’s second reading speech or the explanatory memorandum explaining the purpose of the legislation so that one can view the legislation in that context?

MR CORR:   No, I have not, your Honour, but I can obtain same and ‑ ‑ ‑

GLEESON CJ:   You get a very good account of that, do you not, in section 4, I would have thought, particularly section 4(2)(b) and (c)?

MR CORR:   Yes, that is correct.  It is one of the objects quite clearly spelt out, as your Honour says.  One of the them is the level of the financial support should be determined in accordance with the fixed standards which are contained within the Acts.

GLEESON CJ:   Yes, so that a carer of a child does not have to go to court every time a payment falls into arrears.

MR CORR:   Yes, that is correct.  Your Honours would undoubtedly be aware of the social problems associated with that, but whatever the social benefit, obviously it has to be a question of whether it has been done properly.  If it is in fact a tax, then it should have been done according to the way in which Tax Acts have been drafted previously and continue to be drafted today, in accordance with the previous decisions of this Court as to what is required.

KIRBY J:   Were these cognate Bills?  I see the Registration and Collection Act is dated 1988 and the Assessment Act 1989, but were they part of a package that was introduced into the federal Parliament in the one session with the two Bills travelling together or intended to travel together?  That is why I wanted to have a look at the second reading speech in order to understand the severance of the two Bills.

MR CORR:   Yes, I think it would be difficult to see that they were not part of an entire package, your Honour, that it would be difficult to have the registration and collection without the ability to assess.

KIRBY J:   Was the severance of the Registration and Collection Act from the Assessment Act designed for constitutional purposes, or purported constitutional purposes, in order to afford arguments of severance in the event that one was struck down and the other survived? 

MR CORR:   I am unfortunately not able to assist your Honour as to the ‑ ‑ ‑

KIRBY J:   Can one live without the other, in your submission, or not? 

MR CORR:   I think the Assessment Act certainly could.  It is, as I said, just when there is the element of compulsion coming into being that the difficulty arises.  It would be quite reasonable for the Registrar to make some determination as to what the appropriate amount was and enter it on a register.  Providing that the non-custodial parent did not object to the paying of that amount – and it may well be easier for that person to pay through the Commonwealth rather than directly to the custodial parent – any number of situations where there is no contact and no desire for contact, or geographical separation.  That may be considerably easier.  But when there is the element of compulsion which comes in through the Registration and Collection Act, then there is the difficulty.  If the element of compulsion were to go away, then the Assessment Act could reasonably stand.  Whether that has the benefits which is intended by Parliament is, of course, a different matter. 

KIRBY J:   It would be a pretty puny instrument of legislation, would it not, given that the States have taken the trouble, exceptionally, to refer powers, the Federal Parliament has taken the trouble, exceptionally, in an area not earlier in its domain, to enact legislation, to then say, in an area where, often, emotions run high and people are not agreeable, “Well, we will substitute for any obligations you have at law this statutory obligation, and we will pass the law for assessments, and just leave it up to you to decide whether you pay or not”.  It would not be a very effective piece of legislation.  That is why I would like, at some stage, for myself, to have a look at the second reading speeches and the explanatory memorandum. 

MR CORR:   Yes.  I will undertake to get those to your Honour and the other members of the Court. 

GLEESON CJ:   If you look at those two paragraphs in section 4 that I mentioned, and bear in mind that a tax is ordinarily regarded as a compulsory exaction of money for public purposes, it is a little hard to resist the conclusion that this is an exaction of money for private purposes, is it not? 

MR CORR:   No.  I would say that there is a public purpose is seeing that the various children in this country receive a suitable level of support, and that, as was referred to in the submissions from South Australia, Parliament has become the parens patriae.  There is certainly a private benefit, but it is almost certainly a public purpose as well.  If your Honour carried that argument fully ‑ ‑ ‑

GAUDRON J:   Except the purpose is not for the public at large, is it?

MR CORR:   No.

GAUDRON J:   The purpose is only for benefiting those children whose custodial parent registers the order?

MR CORR:   Yes, that is correct.  If there has been some form of agreement, then there is not the need for this to occur.  There are a large number of cases where there is agreement between the parties and that the children are properly supported, but this was to ensure that where there was not agreement between the parents, or the carers - in some cases grandparents, aunts, uncles, whatever – that there was the money flowing to support those children.

GAUDRON J:   Is not something very similar to this done under the Medicare legislation where doctors bulk‑bill?

MR CORR:   Yes.

GAUDRON J:   Medicare people take the money that would normally go to the patient and give it to the doctor.

MR CORR:   Yes, but there is ‑ ‑ ‑

GAUDRON J:   The difference is that the patient signs, whereas here the difference is that the custodial parent takes a step.

MR CORR:   Yes.  There there is the compulsion to pay the Medicare levy.  You do not have any choice in that matter unless there are opt‑out provisions.

GAUDRON J:   No, I am talking about the transfer of money via the Commonwealth from one citizen to another.

MR CORR:   Yes, that does occur in that instance, but it is not as direct as in this particular case because some people can go for years without any illness whatsoever.  The Medicare levy does not say if you go to a doctor on so many occasions you will pay so much into consolidated revenue, so it is different to that extent but, yes, there is certainly transfer through the consolidated revenue.

GAUDRON J:   Not necessarily through the consolidated revenue.

MR CORR:   Or through some other public fund.  We would submit that determining whether something is a tax should not be on the basis of where the money goes to eventually, because it should be on the basis of how it is collected.  For example, there could be the imposition of a tax which is purely revenue‑gathering, no doubts at all about it being a tax, goes into consolidated revenue.  At some later stage if there was a hypothecation of that amount saying the amount which is paid in there by those particular people will be paid out to various other people in a certain ascertained manner, that would not convert what was originally a tax into not being a tax.

Similarly, if in this particular instance the Commonwealth decided to have a more equitable situation where it said, “We will collect money from all non‑custodial parents on the basis of this ascertainment but, because we can’t get some non‑custodial parents to pay, we’ll average it out and everyone who’s registered will get a proportion, dependent upon how much money we actually collect”, so that it is not the expenditure of the money which is important but it is the collection of it.

When it is that enforced exaction by a public authority, and the Child Support Agency certainly fits that, and for most of its bureaucratic life it has been part of the Taxation Office, and that it is for a public purpose, that I would say, your Honour, that undoubtedly there is the private benefit which accrues to the custodial parent and to the child or children.  But it is also a public purpose but there is most certainly a public interest in seeing that children are well cared for, just purely on the pragmatic basis so that they do not otherwise become a burden on the social security system of the Commonwealth or of the States.

HAYNE J:   But is that to slide from the public purpose of application of moneys to public benefit from exacting it, or public interest in exacting it?  May we not need to be rather more precise in what is meant by the expression “for a public purpose”?  Does it refer only to the purpose of application of the funds thus raised?  How do you say we are to understand “for a public purpose”?

MR CORR:   Well, I think that would have to be generally broadly read.  It is fairly difficult to read down “for a public purpose”.  There are any number of purposes which public funds can be expended.  It is one of those terms that can mean virtually anything that the Parliament may intend to use it for.  I do not think it is something which is really capable of any strict definition.

HAYNE J:   But not every compulsory payment to government or a public authority is a tax, is it? 

MR CORR:   No, definitely not.

HAYNE J:   One common method of attempting, at least, partial discrimination between compulsory payments to government or public authority is the addition of this expression “for a public purpose”.  Now, what does that expression add by way of refinement to the general observation that there is a compulsory payment to government or a public authority?

MR CORR:   In many cases probably very little.  It is difficult to see how most public authorities could be using moneys which they have obtained from however they have obtained them for anything other than a public purpose if they have been set up by the Parliament.  The Parliament obviously did have some idea behind setting up whatever authority it happens to be, that it is difficult to see how it really does add that much to the term otherwise.

GLEESON CJ:   What do you take to be the difference between a tax and an acquisition of property?

MR CORR:   In the Commonwealth, at least, that there has to be the compensation for the acquisition of the property, whereas the tax is just something which is extracted and used for the general benefit of the community.  It is a very specific ‑ ‑ ‑

GLEESON CJ:   Let us assume you are right about that.  What is extracted here is not being used for the general benefit of the community, is it?

MR CORR:   It is in that it provides for the children who would otherwise not have it.  I think your Honour’s point is that it is just going to a particular section of society, but then a lot of government expenditure does exactly the same.  The giving of the diesel fuel rebate to farmers, for example, that is a benefit to a particular section of the community.  In relation to government impost which is then not imposed on them but on other members of the community, that could be seen to be some form of purely private matter, but it also serves some public purpose.  I do not think that there is a strict differentiation between it going for the benefit of some people in a private manner and it also serving a public purpose.

KIRBY J:   Speaking for myself, I found most helpful what South Australia said in its submissions, that when you look at a problem like this you have to keep in mind the constitutional provision, the purpose of that provision, and then the indicia that pull in different ways, because no two legislative schemes are exactly the same.  I realise you say this is – the closest that you get is the Tape Manufacturers Case and no doubt you will take us to that.  But if you look at the indicia, I think South Australia acknowledges that the fact that the Registrar happens also to be the Commissioner of Taxation is something that is on your side of the ledger.  Do you collect anywhere in your written submissions that indicia that you say are indicative of the fact that this is a tax?  Your first point is the public purpose.

MR CORR:   Yes.

KIRBY J:   As I take it, what you are saying there is that the fact that these may be resistant parents who are not willing just to make private arrangements but go into the scheme of the Act is an indication that these are the very types of people for whom the public has an interest in making sure that they cough up and pay for their children.  In that sense it is for a public purpose.  The public has an interest in the welfare of children.

MR CORR:   Yes, that is correct.

KIRBY J:   What are the other main indicia that you rely on?

MR CORR:   One, obviously, is the payment into consolidated revenue, though that is obviously not of itself indicative of it being ‑ ‑ ‑

KIRBY J:   That is because of the Constitution, is it not?

MR CORR:   Yes, that is correct. 

KIRBY J:   It says, it is not only revenue but any moneys must be paid into the consolidated revenue.  So it could not be received by the Commonwealth without being paid into the consolidated revenue. 

MR CORR:   It depends on - in Tape Manufacturers, I believe, that it was done otherwise, that it did not actually pass through consolidated revenue in that instance.  I may be wrong, but I think that is the situation.  Or through some other fund - that if the Child Support Agency were set up as a separate statutory body, it may well be that they have their own funds and so on, and can deal with it.  That is something that is indicative, but obviously cannot be conclusive. 

It is almost a negative indication that something is a taxation when it is not a fee for service.  There is nothing which can be considered to be payment for something which is going to be given to the non-custodial parent in the future.  Nor is it a fine, though, undoubtedly, some non‑custodial parents tend to see it as such.  So that is an indication that it must be some other species, and the number of species which it can be narrows it down to it being a tax. 

KIRBY J:   I referred to the point about the Commissioner, because in paragraph 7 of the South Australian submissions, it says:

the fee is collected by the Commissioner of Taxation (albeit in his capacity as Registrar”. 

Now, have I understood - I just am not familiar enough with the legislation.  Is that, in fact, the case, that the Registrar referred to in the Act is the Commissioner of Taxation wearing another hat?  Is that correct, or not? 

MR CORR:   So I believe. 

KIRBY J:   Because in the definitions that is not made clear. 

MR CORR:   Yes, in the Registration and Collection Act, we get to section 10(2): 

The Commissioner of Taxation shall be the Registrar. 

KIRBY J:   Well, that is a pretty strong indication that he is collecting taxes, wearing another hat. 

MR CORR:   My learned friend, the Solicitor for the Commonwealth points out to me that there has been an amendment by the Child Support Legislation Amendment Act2001, No 75 of 2001. 

KIRBY J:   Minds must have been concentrated on this point. 

MR CORR:   Undoubtedly.  At page 20 of that particular Act under 38 it has been amended to:

(2)  The Child Support Registrar is:

(a) the person who holds, or is acting in, the position known as the General Manager of the Child Support Agency; or

(b) if there is no such position - an SES employee, or acting SES employee, who holds, or is acting in, a position specified by the Secretary by written instrument for the purposes of this paragraph.

KIRBY J:   Who is the Secretary, secretary of what?  Secretary to the Treasury?

MR CORR:   Yes, this is what I was then going to see.

KIRBY J:   In the Act, “Secretary” means “Secretary to the Department of Social Security”.  At least that is in section 4 of the Registration and Collection Act.

MR CORR:   Yes.

HAYNE J:   Can the parties between them make sure that we have the current form of legislation?

MR CORR:   Yes, I understand.

HAYNE J:   It would be of great assistance if that were done, I thought that is what the practice note required?

MR CORR:   Yes.  Yes, your Honour, as I understand it, the Solicitor for the Commonwealth has several cartons of legislation behind him which will be provided to your Honours giving the entire history of the legislation. 

HAYNE J:   There has been reference to the money having at some point to go through consolidated revenue.  Is there some statutory base for that provision or that consequence?

MR CORR:   One moment, your Honour.

HAYNE J:   You might come back to it and at the same time, if it does go through consolidated revenue, where do we find the appropriation of that money that would seem to be necessary under section 81. Thirdly, what, if any, consequence attaches to the section 81 expression “to be appropriated for the purposes of the Commonwealth”? Those are perhaps questions which you may wish to consider and give us an answer to at some convenient point.

MR CORR:   Yes, thank you, your Honour.  I think we were basically going through the operation of the Act and I think a lot of the material which I would have otherwise covered has been covered in the questions.

KIRBY J:   Had you finished your list of indicia that you say brings it on to your side of the line?

MR CORR:   The compulsory nature of it is obviously a significant part of that.  As you have pointed out, the position of the person collecting the money, the payment to the Commonwealth that it would have been quite possible for the Commonwealth to establish some other means of payment so that it did not, in fact, pass through the Commonwealth, the ‑ ‑ ‑

KIRBY J: I query that. My understanding is that the Constitution requires moneys to be paid in, at least in certain circumstances. Section 52, is it?

HAYNE J: Section 81 requires:

All revenues or moneys raised or received by the Executive Government of the Commonwealth –

If section 81 is engaged, that may perhaps give some real complexion to what is happening here. Thus it becomes of some importance, at least to me, to know whether section 81 is engaged. What happens with this money? Generalities are fine, Mr Corr, but can we grapple with the Act?

MR CORR:   Yes, I will return to that, your Honour, perhaps in response.  I can see that your Honour’s point is if this becomes some revenue which is raised rather than just being a transfer from one person to another and then, if it does go through the consolidated revenue, this is an indicator that it is ‑ ‑ ‑

HAYNE J:   I have no view.  All I want to know is how this Act works and how it works against a constitutional background.

MR CORR:   Returning to Justice Kirby’s point, at the moment the other indicia escape me, though I may return – actually, one further point is the method in which it can be collected from the employer of the person under Part IV of the Registration and Collection Act which is indicative of the way that income tax is otherwise collected.

KIRBY J:   That is not necessarily so though, because a garnishee order can be collected from an employer but that is not a tax and no one would suggest it is.

MR CORR:   No, that is correct.  That would flow to the other leg of the argument, namely that it was an exercise of judicial power that the Commonwealth can ‑ ‑ ‑

KIRBY J:   That is a different point.

MR CORR:   Yes, that is correct.  Also, the fact that it is something which is made payable to the Commonwealth, the conversion of that which is payable to the other party by section 30 of the Registration and Collection Act is made a debt payable to the Commonwealth is another indicator also that the amounts payable by employees are also made debts due to the Commonwealth under section 64 of the Registration and Collection Act.  So that is also indicative that it is something which is payable to the Commonwealth.  It is not said to be something which is payable to the other party and the Commonwealth is merely acting as a conduit.  It is something which actually comes to the Commonwealth, that there is a trust fund which is established under Part VI.

HAYNE J:   You say “a trust fund”.

MR CORR:   Yes, that is correct.

HAYNE J:   What is the reserved money fund of which the child support reserve is a component?  What is the statutory basis for this?  The reserved money fund no doubt is something that I should know about but it is something about which I do not know.  There is provision in here for payments out of consolidated revenue into the child support reserve.  We have to write a judgment, Mr Corr.  I would be glad of some help.

MR CORR:   Yes, your Honour.

GAUDRON J:   I have problem too.  What is it in the Act that makes money due to the Commonwealth under or in relation to the liability by deduction?  Where do we find this “amounts due to the Commonwealth”?

MR CORR:   Section 64 of the Registration and Collection Act.

GAUDRON J:   “An amount payable to the Registrar”, all right.  What makes it payable to the Registrar?  We do really have to go through this Act in detail.

MR CORR:   Yes, that is part of Part IV.

GAUDRON J:   What section?

MR CORR:   Section 64 is part of Part IV which is the collection by salary or wages.  We go back to the beginning of that part in sections 43 et cetera. 

GAUDRON J:   I want to know about this.  If you go back to section 43, “amounts due to the Commonwealth”.  Now, if we go to 64, that is amounts “payable to the Registrar”.

MR CORR:   Yes.

GAUDRON J:   Now, what makes them payable to the Registrar?

MR CORR:   In section 30.

HAYNE J:   Section 30 is where we begin, is it? 

MR CORR:   Yes.

HAYNE J:   Which in turn pitches us back, I suspect, into earlier legislation, but if we start at section 30.

KIRBY J:   I think you may have thought that because you set out a number of the sections in the Act that we would understand all these things when we came in.  Speaking for myself, this is a complex piece of legislation.

MR CORR:   Yes, I agree, your Honour.

KIRBY J:   Either you or the Solicitor for the Commonwealth or somebody has to take us so that we understand how it operates, I am afraid.  There is no escape.  It is a tedious, but necessary job.

MR CORR:   Yes, thank you, your Honour.  So there is the liability under section 30.  That has been converted into a payment which is “due to the Commonwealth”.  Then, if the person is an employee, the employer is notified under Part IV and the employer then pays the money to the Registrar.

GAUDRON J:   Then what does the Registrar do with it?

MR CORR:   The Registrar then pays it into the trust account.

GAUDRON J:   Where does that come from?

MR CORR:   That is in Part VI.

GAUDRON J:   What section?

MR CORR:   Section 73 onwards, your Honour.  The payments into the trust account are listed at section 74.

GAUDRON J:   Okay, and that is an appropriation out of consolidated revenue?

MR CORR:   No, there is the payment into the trust account in section 74.

GAUDRON J:   Now, first of all, we have these debts due to the Commonwealth.  We have them garnisheed, if you like.

MR CORR:   Yes.

GAUDRON J:   Okay.  The employer sends the money to whom?

MR CORR:   To the Registrar.

GAUDRON J:   Where do we find that?

MR CORR:   Yes, in section 46.

HAYNE J:   Section 47, he has to pay it on “to the Registrar”.  Section 46 deduct, 47 pay it on.

MR CORR:   Section 47 pay it on.

GAUDRON J:   Yes.  Then what does the Registrar do with it?

MR CORR:   The Registrar pays in subject to section 74 into the “Trust Account”.

GAUDRON J:   He forwards it to the Registrar.

MR CORR:   He forwards it to the Registrar.

GAUDRON J:   But section 74 ‑ ‑ ‑

MR CORR:   Says pay into the “Trust Account” the “amounts received by the Registrar” including the amounts which are paid under 47.

HAYNE J:   No, no, “amounts equal to amounts received”.

GAUDRON J:   They are “transferred to the Reserve” which is a component of the reserved money fund from consolidated revenue.  What gets them into consolidated revenue?

MR CORR:   The payments “out of the Trust Account”.

GAUDRON J:   Where is the trust account?

MR CORR:   The payments out of the trust account – I think 75(d).

GAUDRON J:   I do not think it is those moneys.  There is a missing step, I think, Mr Corr.  That says how moneys standing to the credit of the reserve may be applied when it talks about money that has:

been transferred from the Consolidated Revenue Fund under section 77 or subsection 78(3) –

which I have not come to yet.  That is unremitted deductions.

MR CORR:   Yes.

GAUDRON J:   And it seems, underpayments or unexplained – now, is there some provision of the Act that requires the Registrar to pay this into consolidated revenue?

KIRBY J:   Or is that a constitutional requirement?

MR CORR:   Yes.

KIRBY J:   Speaking for myself, I need a chart, and it ought to have been produced before the case.  I mean, with all respect to you, it is a waste of the time of the Justices of the High Court to be sitting here like schoolchildren looking through the text of a statute trying to work out how on earth it operates.  It is not an efficient way for us to be performing our functions.

MR CORR:   No, your Honour.  Having a discussion with my friend, the Solicitor for the Commonwealth, the points which I have not been able to clarify I have no doubt he will be able to.

GAUDRON J:   He may be able to but, until you clarify it, I cannot follow your argument.

MR CORR:   Yes, your Honour.  Simply, it is as I suggested previously, that where there is this compulsion to pay it, it does in fact constitute the tax.

GAUDRON J:   What there is, although we cannot trace the mechanism, is a conversion of a liability to pay maintenance into a debt due to the Commonwealth.

MR CORR:   Yes.

GAUDRON J:   Presumably there being the debt to the custodial parent thereby being discharged?

MR CORR:   Yes, that is correct - section 30.

GAUDRON J:   One is not exactly talking about the compulsory exaction of money, is one, if one is talking about in the first instance the statutory assignment of a debt?  That is what we are talking about, are we not, under the Act?

MR CORR:   But the Acts themselves create the debt.

GAUDRON J:   Perhaps the Child Support (Assessment) Act creates the debt.  We have not been told about that.  I should have thought, uninstructed and unaided as to the working of the Act, that something in the Child Assessment Act creates a debt from the non‑custodial parent to the custodial parent.

MR CORR:   Yes, that is correct.

GLEESON CJ:   Is that section 77 of the Assessment Act?

HAYNE J:   And 79.

MR CORR:   Yes.

GAUDRON J:   Then upon registration, there is an assignment in effect of the debt by the custodial parent to the Commonwealth.

MR CORR:   Yes, that is correct.

GAUDRON J:   The question is:  is that a tax?

MR CORR:   Yes.

GAUDRON J:   There is nothing quite similar to that, is there?  That is not in the same territory as the Tape Manufacturers Case, is it?

MR CORR:   The liability to pay, in Tape Manufacturers, as I say, is somewhat analogous, because it is something where there was the requirement to pay by the persons who purchased the tapes.  They, obviously, had to pay that amount of money; in this case, the non-custodial parent is obliged by ‑ ‑ ‑

GAUDRON J:   In this case, the non-custodial parent is obliged to pay the money by virtue of the assessment. 

MR CORR:   Yes. 

GAUDRON J:   He is not obliged to pay it to the Commonwealth at that point, but he is obliged to pay the money by virtue of the assessment.  Is that correct? 

MR CORR:   Yes, there is that, that once there is that assessment of the obligations of the non-custodial parent, yes, there is the debt. 

GLEESON CJ:   That follows from sections 77 and 79 of the Assessment Act. 

MR CORR:   Yes, that is correct.  So the Assessment Act has created this obligation to pay.  That is ‑ ‑ ‑

GAUDRON J:   And the debt is effectively assigned. 

MR CORR:   Yes. 

GAUDRON J:   And then the other provisions of the Act are for the collection of that debt – or the relevant provisions are for the collection of that debt. 

MR CORR:   Yes. 

GAUDRON J:   What makes that a tax? 

MR CORR:   If it is not a tax, then is the Commonwealth creating a mechanism for the enforcement of a debt without having recourse to a court? 

GAUDRON J:   Then that takes you to judicial power, I suppose. 

MR CORR:   Yes.  This is why I was suggesting earlier, there was the closed universe ‑ ‑ ‑

GAUDRON J:   But let us assume I, as an employer, owe a lot of money to my employees, or I have potential liabilities to my employees.  I do not pay them.  The Commonwealth could, could it not, by statute, pay out to my employees their entitlements and say, “In place, you owe the Commonwealth, and we are going to take it out of your gross income in this manner, from this day forward”, could it not? 

MR CORR:   Yes, it could. 

GAUDRON J:   And you say, that would also be a tax. 

MR CORR:   Yes, that is correct. 

GAUDRON J:   Because? 

MR CORR:   It fits within the classical definition of the compulsory exaction by a public authority for a public purpose. 

GAUDRON J:   Well, what is different if I simply owe money to the Commonwealth because I negligently drove my motor vehicle into one of its buildings?  What would there be to stop the Commonwealth saying, “Anybody who negligently drives their vehicle into a Commonwealth building is liable to pay the Commonwealth for the repairs, assessed by the Auditor-General, and we will have it deducted out of his or her salary every fortnight”? 

MR CORR:   I do not think there would be anything which would prevent them from legislating as such.

GAUDRON J:   Would that still be a tax?

MR CORR:   Clearly, initially there would be a debt between that person and the Commonwealth, whether converting that into something which is payable without recourse to a court.  Quite possibly it is, your Honour.

GAUDRON J:   Quite possibly is a tax, because it does not go through a court?

MR CORR:   Yes, if you are wanting to enforce a debt in the normal manner, you would just go to the local court and get judgment and then have that executed.  If you set up a mechanism whereby the Commonwealth, or any State, is collecting money which is a debt which has been assigned in one way or another, other than by that mechanism you are, in fact, creating a tax.

KIRBY J:   Is the amount of the child support fixed by a schedule in the statute, or does it vary with the income of the parent, or is it discretionary completely?

MR CORR:   There are tables which are contained within the Assessment Act, under Part 5 of the Assessment Act, going from sections 35 onwards.

KIRBY J:   So can you sit down, and taking the income of the parent, work it out mathematically?

MR CORR:   Yes.

KIRBY J:   Is it as simple as that, or is there a discretion built in waiving amounts, or for reducing the sum?

MR CORR:   There is the calculation of the various formulas depending on the number of children, income and so forth.  Then there is departure provisions in Part 6A.

KIRBY J:   What is departure provisions?  I saw that in your submissions, but it does not mean anything to me.  Does that mean departing from Australia?

MR CORR:   No.  The title is “Departure from administrative assessment”.

KIRBY J:   It is one of these terms of art that do not mean anything to a person who is outside the expertise ‑ ‑ ‑

MR CORR:   No.  It is contained in Part 6A, which is sections 98A onwards, and it is departing from the provisions that would otherwise apply from earlier in the Act, as I referred to with section 98C earlier, where it would be ‑ ‑ ‑

KIRBY J:   It is really exceptions?

MR CORR:   Yes, that is correct, and allowing for, as I said, such things as where the non-custodial parent’s income has been artificially lowered or that there may be particular situations where more payment needs to be paid.  For example, if the child was particularly disabled and so on, that it may well be reasonable for a greater level of payment to be made.

KIRBY J:   I am aware that the section 55 provision comes from British constitutional history and it is explained in part by its context and the powers of the Senate in Australia to interfere with or amend tax Bills. But is there a good description of the history and its purposes constitutionally in an earlier decision of this Court that you can point to?

MR CORR:   Yes, I think in Re Dymond 101 CLR 11. Justice Menzies certainly at page 27 goes into section 55. I will try and find the other Justices. Justice Fullagar at page 20 continuing.

KIRBY J:   Justice Menzies calls the construction or approach to construction by this Court “strict”.  Now, what does that mean in that context, in your submission?  This is at page 28.

MR CORR:   Yes.  That I think this is something which was covered in the various submissions by particularly the Solicitor for the Commonwealth who was suggesting that, in fact, the strict interpretation should not be followed and that if you were to come to the conclusion that this was, in fact, a tax, that that particular view should be overturned, but that it is ‑ ‑ ‑

KIRBY J:   In a sense, this runs into the problem Justice Hayne raised earlier, namely, that it is a very general word and does not give much of a clue, but it is used by Justice Menzies and I am just trying to understand what, in your submission, he meant by:

the strict construction of s 55 that has always been adopted –

ie by this Court.  Now, what is “the strict construction” and why is it strict?

MR CORR:   That “the strict construction” is that the Act can only deal with the matters imposing taxation and nothing else.  I think that as well as the English constitutional history, there was also, I believe, some carryover from the American system as well, where there was a wish to avoid the tacking into various Bills.  So that in order to prevent anything which may conceivably be outside the imposition of taxation, that it has to be purely restricted to the imposition of taxation within a particular Bill.  If there needs to be the assessment in others, that is contained within another Act.  That is what, I think, Justice Menzies refers to at page 28 as being the practice in Australia.

So “strict” is that if there are two interpretations which can be adopted as to whether or not it complies, then you should adopt that one which says that it does not, that if it looks like it may infringe, then it does.  It is very much a precautionary matter.

If I might just respond, Justice Hayne raised some questions which I will endeavour to respond to later on, but otherwise unless I can be of any further assistance, those would be my submissions.

GLEESON CJ:   You have not dealt with the judicial power part.

MR CORR:   Yes, I apologise, your Honour.  I think that has been covered considerably in all my submissions.

GLEESON CJ:   You rely on your written submissions?

MR CORR:   The written submissions.  As I submitted earlier, there is the closed universe of being able to obtain money from citizen A to give to citizen B.  The first limb is that it can be done by taxation.  The second is that it can be done by the exercise of a judicial power.  Those would be my submissions.

GAUDRON J:   Can it not be done by assignment, under the general law?

MR CORR:   That is voluntary.

GAUDRON J:   Not necessarily.  Assume Justice Kirby owes me money, can I not, if I follow the procedures of the Conveyancing Act, assign that debt to Justice Callinan and will not the law then force him to pay me?

MR CORR:   Yes.

GAUDRON J:   Or force Justice Kirby to pay him, rather?

MR CORR:   Yes.

GAUDRON J:   And that is regardless of the interposition of a court.  That is the general law.

MR CORR:   Yes, but the person who determines – if Justice Callinan wishes to enforce that against you and take your goods, then he will have to go to a court and get that court to make the determination as to what your rights and obligations are.  He cannot go off to the Department of Finance across the road and say, “Could you go and enforce this debt, please?”  But it is the enforcement of that debt.  Yes, certainly there can be assignments all round the place that people can sell their debts, transfer them, factor them, whatever, but when you get them being enforced by someone other than by a court ordering that you do, in fact, have that debt ‑ ‑ ‑

GAUDRON J:   We need to know what is happening when you talk about enforcement.  You are saying, are you, “One must have an opportunity to dispute one’s indebtedness”.

MR CORR:   There can be that; certainly there is that.  There is also ‑ ‑ ‑

GAUDRON J:   But is that what you are saying?  You are saying Chapter III operates so as to preclude legislation which imposes legislative obligations with respect to debts unless there is an opportunity dispute it in the courts.

MR CORR:   Yes, that it cannot be just something where the ‑ ‑ ‑

GAUDRON J:   Do we not have an opportunity to dispute it in the courts here under the Assessment Act?

MR CORR:   Yes, there are appeal mechanisms.

GAUDRON J:   Then why does that not provide the answer to your own argument?

MR CORR:   The appeal provision does not change the nature of the original determination if there is a determination made by an administrative officer.

GLEESON CJ:   But administrative officers determine rights and liabilities routinely.  If a foreign traveller arrives at Sydney airport this morning with some dutiable goods and declares them to a customs officer, the customs officer will assess and impose customs duty on the goods.

MR CORR:   Yes, that is correct.

GLEESON CJ:   That is not an exercise of judicial power, is it?

MR CORR:   No, it is not.

GLEESON CJ:   Although it might involve both a decision of fact and a decision of law.

MR CORR:   That is correct.  That person can challenge that amount payable by going into a court and the amount which is payable by them cannot be taken from their bank account until there has been an order from a court that they are in fact obliged to pay that amount.

KIRBY J:   But the goods may be impounded.  There are all sorts of disadvantages that can attach – general warrants and all sorts of provisions in the Customs Act.

MR CORR:   Yes, that is correct.

HAYNE J:   Part VII of the Registration and Collection Act seems, at least on a quick perusal, to be devoted entirely to providing an opportunity for those adversely affected by, as you would have it, an administrative determination to go to court and challenge it.

MR CORR:   Yes.

HAYNE J:   Where does your argument go from there?  Is that a proper characterisation of Part VII?  If it is, what is the consequence?

MR CORR:   Certainly they can go to the court and challenge them but, in the event that a person does not challenge them and there is an enforcement against them by means of their wages being garnisheed and so on, the fact that they have not taken up that opportunity for the review does not change the nature of the original determination.  If it is determining conclusively what their rights and obligations are and there is an enforcement mechanism, then that is an exercise of judicial power and that is what is done.

It does not matter whether there is an appeal mechanism or not, that still remains an exercise of judicial power at that first instance, because there is exactly that right.  The difference between most of the determinations by bodies such as the Taxation Boards of Review and the Copyright Tribunal and so on, is that, in those cases, you are largely looking at the giving of a right by the Commonwealth or the reviewing of an executive decision.  In the Taxation Boards of Review, or any of the other various administrative tribunals around the place which are looking at the review of those particular executive decisions, and saying, “Yes, you will pay a lesser amount of tax in this particular case” or, “Yes, you are entitled to the exercise of this particular statutory right, which is conferred under the Copyright Act or the Trade Marks Act or something similar”, this is a significantly different situation, where you are not looking at the rights of an individual as against the executive, where the executive is just reviewing its own decision and there can be any number of levels of review within the executive.  You are looking at a member of the executive determining the rights between two individuals and requiring one individual to pay to another citizen that which belongs to them.  It is a unique situation. 

GAUDRON J:   That is not so very different, is it, from what happens in terms of wage fixation.  Union and employer go along to the Arbitration Commission, not a court – clearly, not a court ‑ ‑ ‑

MR CORR:   No. 

GAUDRON J:    ‑ ‑ ‑ and the Arbitration Commission says, “As of this week, you will pay this man $20 a week extra”. 

MR CORR:   Yes, that is for the return of services in the future; that, in the future, you will work, you will get paid ‑ ‑ ‑

GAUDRON J:   But that is what your assessment is:  “In the future, you will pay so much for the support of your child”.  Is that not right? 

MR CORR:   Yes, there is, that in future, you will do that.  But there is nothing in return.  It is not ‑ ‑ ‑

GAUDRON J:   What do you mean, “nothing in return”?  What there is in return is the devotion and care of the custodial parent.  There is the discharge by the custodial parent of the obligations that would normally fall on both. 

MR CORR:   Yes, but that is based on the obligations which exist at the moment, not on something which is going to exist in the future.  That is the obligation there at that time.  It is, I would submit, significantly different to a wage-fixing situation.  It is looking at your rights and obligations as they exist at the moment, rather than a set of situations which exist in the future.  The wage-fixing one also falls down because either party can move away from it. 

The employee can say “I no longer wish to work for you”, and goes elsewhere.  The employer can say “I am closing up shop, good bye”, you do not have that.  With this situation you are required to continue paying.

GAUDRON J:   That is the nature of parenthood.

GLEESON CJ:   The consequence of a joint Act that has had an irrevocable consequence?

KIRBY J:   I think you had better step back a little bit from this territory, you are on very dangerous ground there, not just with Justice Gaudron.

MR CORR:   Yes, indeed.  I will not make comments about the obligations of parents.

KIRBY J:   I took it that your case in section 55 that you said was closest to you was the Tape Manufacturers Case.  What do you say is the case closest to you in the judicial power case?

MR CORR:   I would say Brandy v Human Rights Commission.  As, I think, in the submissions in reply, if you looked at what was originally required in that particular case where Mr Bell, the complainant, went to the Human Rights Commission and complained about both ATSIC and Mr Brandy’s behaviour, Commissioner Castan found that both ATSIC and Mr Brandy were required to give compensation to Mr Bell.  There was nothing unremarkable about the employer being required to pay compensation for not providing an appropriate workplace and allegedly not allowing the employee to be subject to racial vilification, and there was never any question of that being challenged, and it was not.

MR MITCHELL:   I would submit not, your Honour.  The substance of the whole scheme looked at together is for the creation of a private debt by the Assessment Act, which can, but not must, be assigned to the Commonwealth for the purpose of its collection on behalf of or for the benefit of the creditor, which is not substantially different from a system which the Commonwealth could have established at common law had it chosen not to enact the Assessment Act.

So the Registration Act, in my submission, does not fundamentally alter the private nature of the liability created by the Assessment Act and when the Registration Act then provides for debt to the carer entitled to support to be substituted with a debt to the Commonwealth, it is not effecting an exaction and perhaps I would adopt the language which his Honour Justice Gummow used in the Air Services decision.

Again, without taking your Honours to it, Air Services Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 285, his Honour posed the question in terms of whether there was a financial burden imposed by the Act which was said to impose the tax and here we say that the Registration Act looked at a loan firstly does not impose any additional financial burden. It simply involves a person who may have owed $1,000 to the carer of their child now owing the same $1,000 to the Commonwealth.

That substantive approach to the question of exaction seems to be consistent with the comment which this Court made in the Air Caledonie decision (1988) 165 CLR 462 at 467 that there is no reason, in principle, why a tax should not take the form other than the exaction of money.

In relation to the question of public purpose, can I deal with one question posed by your Honour Justice Hayne, that is the impact of the words appropriation “for the purposes of the Commonwealth” in section 81 of the Constitution. Many of those words were, of course, the subject of a number of different views in the AAP Case, which is reported in Victoria v The Commonwealth (1975) 134 CLR 288. I do not propose to take your Honours to it.

Can I begin by disavowing any attempt to suggest that one of those views might be preferred to the other in this case?  My submission is that whichever view one takes of those words as adopted by the Justices in the AAP Case, it is clear that those words are not controlling for the purposes of characterising an impost as a tax.

The broad view which was adopted by Justices McTiernan, Mason and Murphy was that which Chief Justice Latham had adopted in the Pharmaceutical Benefits Case which was really that the words simply meant any purposes the Parliament may determine.  They really were not words of limitation.  In that context it seems unlikely that Chief Justice Latham in Matthews v Chicory Marketing Board 60 CLR 263 at 276, using the phrase “public purposes” which seems clearly to be limitation words, was using those words in the broad sense he gave to the words “purposes of the Commonwealth” appearing in section 81. If the contrary is asserted, then one really is forced to the position of my learned friend for the plaintiffs when he says that the words “public purpose” really do not add anything very much to the definition.

Justice Jacobs viewed the question as one which was simply not justiciable, reference to that being at page 410 of the Commonwealth Law Reports. If the question which section 81 poses is not justiciable, then it is difficult to see how that requirement can control the characterisation of a tax which clearly is a justiciable question.

Chief Justice Barwick’s and Justice Gibbs’ narrower view of “purposes of the Commonwealth” comprehended any purpose in respect of which the Parliament had power to make laws. We would simply make the point that there is no reason why those purposes must be affected by expenditure of a public as opposed to a private nature. So my submission is that we do not need to resolve this difference of opinion to see that the language of section 81 of the Constitution, either in relation to revenue or in relation to appropriation does not hold the key to characterising an exaction as a tax, if indeed there is any relevant exaction effected here.

If it please the Court, those are my submission.

GLEESON CJ:   Thank you, Mr Mitchell.  Yes, Mr Corr.

MR CORR:    Yes, your Honour, I think most of the matters have been traversed but in relation to public purpose, I would just point out that the result of the custodial parent receiving child support payment is that they can, if they are in receipt of a social security benefit, have a diminution of that benefit because such child support is considered to be income for the purposes of the Social Security Act 1991 under sections 8, 10, 503 and 1068A. So that, in fact, one of the effects of this determination would be that, in fact, the revenue of the Commonwealth would be increased or, rather, the expenditure would be decreased in some cases.

Other than that, your Honour, I think, as I have said, the issues that have been before the Court have been traversed both in my original submissions in the matters before the Judges.  Unless I can be of any further assistance, those would be my submissions.

GLEESON CJ:   Thank you, Mr Corr.  Yes, Mr Solicitor.

MR BENNETT:   Your Honours, may I have leave in accordance with what I indicated earlier, to supplement the schedule which I handed to the Court….and to include in that a couple of the second reading speeches I was asked about in my submissions.

GLEESON CJ:   Yes.

MR CORR:   Similarly, your Honour, I believe I am to give second reading speeches as well.

KIRBY J:   It may be that you could coordinate that with the Solicitor for the Commonwealth.

MR CORR:   Yes, we shall talk, your Honour.

KIRBY J:   We do not want them twice.

MR CORR:   Once is usually more than enough, your Honour.

GLEESON CJ:   We will reserve our decision in this matter.

AT 3.40 PM THE MATTER WAS ADJOURNED