Whittaker v Child Support Registrar
[2000] FCA 1733
•30 NOVEMBER 2000
FEDERAL COURT OF AUSTRALIA
Whittaker v Child Support Registrar [2000] FCA 1733
CONSTITUTIONAL LAW and ADMINISTRATIVE LAW - application pursuant to s 39B the Judiciary Act 1903 (Cth) for prerogative writs with respect to determinations made by the Child Support Registrar pursuant to Part 6A of the Child Support (Assessment) Act 1989 (Cth) - whether the Child Support Registrar exercises administrative or judicial power
Judiciary Act 1903 (Cth) 39B
Child Support (Assessment) Act 1989 (Cth) ss 3, 4, 24, 25, 29, 30, 31, 34, Parts 5, 6A, 7
Child Support (Registration And Collection) Act 1988 (Cth) ss 3, 17, 23, 24, 24A, 30, 43
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Acts Interpretation Act 1901 (Cth)In the marriage of Perryman (1993) 115 FLR 260 referred to
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 cited
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 referred to
HA Bachrach Pty Limited v The State of Queensland (1998) 195 CLR 547; [1998] HCA 54 referred to
The Queen v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 discussed
Shell Co Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 cited
Cominos v Cominos (1972) 127 CLR 588 referred to
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 referred to
Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 cited
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 referred toMARK ALAN WHITTAKER v CHILD SUPPORT REGISTRAR and DONNA RENNIE WHITTAKER
Q 79 OF 2000DRUMMOND J
SYDNEY (HEARD IN BRISBANE) (VIA VIDEOLINK)
30 NOVEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 79 OF 2000
BETWEEN:
MARK ALAN WHITTAKER
APPLICANTAND:
CHILD SUPPORT REGISTRAR
FIRST RESPONDENTDONNA RENNIE WHITTAKER
SECOND RESPONDENT
JUDGE:
DRUMMOND J
DATE OF ORDER:
30 NOVEMBER 2000
WHERE MADE:
SYDNEY (HEARD IN BRISBANE) (VIA VIDEOLINK)
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 79 OF 2000
BETWEEN:
MARK ALAN WHITTAKER
APPLICANTAND:
CHILD SUPPORT REGISTRAR
FIRST RESPONDENTDONNA RENNIE WHITTAKER
SECOND RESPONDENT
JUDGE:
DRUMMOND J
DATE:
30 NOVEMBER 2000
PLACE:
SYDNEY (HEARD IN BRISBANE) (VIA VIDEOLINK)
REASONS FOR JUDGMENT
This is an application brought by Mr Whittaker on 17 August 2000 pursuant to s 39B the Judiciary Act 1903 (Cth) for prerogative writs in the nature of certiorari to quash certain determinations by the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), for a mandamus to compel the Registrar to make consequential corrections to the Child Support Register and for a prohibition to prevent the Registrar from exercising his powers under Part 6A of the Assessment Act with respect to any future application made thereunder in which he is named as respondent.
Mr Whittaker seeks to invalidate three decisions made by review officers of the Child Support Agency, each adverse to him. The first was made on 3 May 1995 on his application pursuant to Part 6A the Assessment Act for a departure assessment designed to reduce the amount of his liability under an earlier administrative assessment of child support made in respect of him; that application was refused. The second, made on 30 November 1995, set the applicant’s child support income amount at $45,000 per annum on the successful application by his former wife for a departure from the administrative assessment of child support earlier made in respect of Mr Whittaker. The third decision was made on 10 October 1996, also in an application brought by Mr Whittaker for a departure from the then current administrative assessment of child support made in respect of him designed to reduce his liability under that assessment. The review officer, by her decision, dismissed this application.
Mr Whittaker has decided not to exercise his right in relation to any of these three decisions to apply for a hearing de novo before the Family Court under ss 116 and 117 the Assessment Act. From the bar table, he explained why. He says the review officer has a very wide discretion, in making decisions of the kind he is concerned to challenge, to evaluate matters such as his earning capacity. He says it would be difficult, for practical reasons, for him to persuade the Family Court, on a rehearing, that his earning capacity was likely to be less than that determined by the review officers. Accordingly, he seeks to challenge the legal efficacy of each of the review officer’s decisions.
In form, his application is for prerogative writs under s 39B(1) the Judiciary Act 1903 (Cth). The Solicitor-General does not dispute that, in a proper case, prerogative writs will go to the Registrar. He submits, however, that there are good discretionary grounds for denying that relief here, because of delay on Mr Whittaker’s part, not explained by any evidence, for bringing the present proceedings and because Mr Whittaker has an alternative avenue to seek relief which is wide ranging by way of an application under ss 116 and 117 the Assessment Act to the Family Court. Of central concern to Mr Whittaker is the quashing of the three decisions in question. It is questionable whether certiorari is available here when it is sought as primary relief, rather than as relief ancillary to one or other of the prerogative writs expressly provided for by s 39B. This issue was not, however, pursued.
In the course of an earlier directions hearing, Mr Whittaker made it clear that he also wished to challenge the authority of the Registrar to make decisions under Part 6A of the Assessment Act of the kind here in question on the ground that that involved the Registrar exercising the judicial power of the Commonwealth. Notices of this constitutional question have been given; none of the Attorneys has intervened. (The Solicitor-General appeared not for the Commonwealth but for the Child Support Registrar.) Discretionary barriers should not stand in the way of the relief sought if this constitutional challenge is well-founded. There is a public interest in settling the question of the authority of the Parliament to confer on the Registrar the decisional authority now called into question.
In order to deal with this issue, it is necessary to say something about the legislative framework of the child support scheme. The case is to be determined on the legislation in force when the three decisions were made. It is not relevant to have regard to any of the amendments made after 1996. The legislation was enacted to make provision for the proper financial support by parents of their children, against the background of increasing marriage breakdown, remarriage and concern that children of failed marriages were not receiving adequate support from one or both of their parents, due often to the financial demands made on the parents in supporting the children of their subsequent marriages. It is not only in such situations the Assessment Act operates, but that was a central concern of the Legislature.
By s 3 the Assessment Act, it is declared that parents of a child have a primary duty to maintain the child and that that duty is not of lower priority than the duty of the parent to maintain any other child of the same or another spouse. By s 4(1), it is declared that “the principal object of this Act is to ensure that children receive a proper level of financial support from their parents”; other objects of the Assessment Act are identified in s 4(2) as being to ensure 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 s 4(2)(b), that that level “should be determined in accordance with the legislatively fixed standards” and, in s 4(2)(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. …”
By s 24 the Assessment Act, application can be made to the Registrar for administrative assessment of child support, but only for certain categories of child. By s 25, such an application can only be made by the person who is an “eligible carer of the child” and who is not living with the person from whom payment of child support is sought.
By s 29 the Assessment Act, the Registrar is empowered, in determining whether an application for child support has been properly made by a person with standing to bring it, to act on the basis of the application and the documents accompanying the application and is not required to conduct any inquiries or investigations into “the matter”, ie, those limited issues. By s 30, the Registrar must accept an application for administrative assessment of child support if satisfied, under s 29, that it has been properly made. By s 34, if the Registrar accepts an application for administrative assessment of child support for a child, the Registrar must immediately notify the applicant and the person from whom the applicant sought payment of child support in writing. By s 31, if the Registrar accepts an application for administrative assessment of child support as properly made and if satisfied of certain other matters, “child support is payable for the child by the liable parent to the carer entitled to child support”. By s 31(2), the Registrar must, “as quickly as practicable assess the annual rate of the child support payable by the liable parent to the carer entitled to child support in relation to the days in the child support year in which the application is accepted … in relation to which child support is payable for the child”. In accordance with the objects of the Assessment Act set out in ss 4(1) and (2)(b) and (c), Part 5 establishes formulae for determining the amount of child support payable in the particular case. One of the key factors to be used in these formulae is the liable parent’s “child support income amount”, which is declared to be, in s 38, subject to certain qualifications, “the liable parent’s taxable income under the Income Tax Assessment Act 1936 … for the liable parent’s last relevant year of income in relation to the child support year”.
It is necessary to turn now to the Child Support (Registration And Collection) Act 1988 (Cth) (“the Collection Act”) which makes provision for the collection of amounts administratively assessed to be payable by way of child support. By s 3, the objects of this Act are declared to be to ensure “that children receive from their parents the financial support that the parents are liable to provide; and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis”. By s 17(2), a child support assessment is declared to be a “registrable maintenance liability” within s 17(1). By s 23, the payee of a registrable maintenance liability (which include an assessment of child support made under the Assessment Act) is required promptly to inform the Child Support Registrar of the making of the assessment in a prescribed manner. Upon receipt of such a notification from the payee, s 24 obliges the Registrar promptly to register the liability under the Collection Act by entering particulars of the liability in the Child Support Register. However, where (as here) the registrable maintenance liability takes the form of a child support assessment made by the Registrar under the Assessment Act, the Registrar is duty bound by force of s 24A to immediately register that liability under the Collection Act by entering particulars of the liability in the Child Support Register (unless the payee elects not to have that liability enforced under this Act).
Section 30 of the Collection Act provides:
“Where a registrable maintenance liability is registered under this Act:
(a)amounts payable under the liability in relation to the child support enforcement period are debts due by the payer to the Commonwealth in accordance with the particulars of the liability entered in the Register;
(b)the payee is not entitled to, and may not enforce payment of, those amounts.”
Section 43 contains the “general rule of collection by automatic withholding in case of employees”: where the payer of an enforceable maintenance liability is an employee, the Registrar shall, as far as practicable, collect amounts due to the Commonwealth under or in relation to the liability by deduction from the salary or wages of the payer under this Part. Division 1 of Part 4 contains an elaborate scheme for implementing this general rule.
It is necessary to return now to the Assessment Act and refer to the provisions empowering the making of variations to an administrative assessment of child support. These provisions are contained in Part 6A. It was under these provisions that the three decisions were made, which Mr Whittaker seeks to challenge.
Section 98A(1) provides:
“… The object of this Part is, subject to subsection (2), to give power to the Registrar to make a determination having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to a child.”
The following provisions of Part 6A are also relevant:
“98B(1) [Liable parent or carer may apply for determination] If, at any time when an administrative assessment is in force in relation to a child:
(a)the liable parent concerned; or
(b)the carer entitled to child support concerned;
is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child, the liable parent or carer may, by written application, ask the Registrar to make a determination under this Part.
98B(2)[Parties] The parties to the application are the liable parent and the carer entitled to child support.
98C(1)[Where Registrar may make determination] Subject to this Part, if:
(a)an application is made to the Registrar under section 98B; and
(b)the Registrar is satisfied:
(i)that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii)that it would be:
(A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part;
the Registrar may make the determination.
98C(2)[Grounds for departure] For the purposes of subparagraph (1)(b)(i):
(a)the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and
(b)sub-subparagraph 117(2)(b)(i)(A) has effect subject to subsection 117(3).
98D(1)[Determinations which Registrar may make] The determinations that the Registrar may make under this Part are as follows:
(a)a determination varying the rate of child support payable by the liable parent concerned;
…
98D(2)[Different provision for different child support years] A determination under this section may make different provision in relation to different child support years and in relation to different parts of a child support year.
98EA If the Registrar is satisfied, after considering the application, that the issues raised by the application are too complex to be dealt with under this Part, the Registrar may refuse to make the determination without taking any further action under this Part, and recommend that application be made to a court having jurisdiction under this Act for an order under Division 4 of Part 7.
98F If the Registrar is satisfied, after considering the application, that:
(a)there are no grounds for departing from the provisions of this Act relating to administrative assessment of child support in relation to the child concerned; or
(b)that it would not be:
(i)just or equitable as regards the child or either party to the application; or
(ii) otherwise proper;
to make the determination;
the Registrar may refuse to make the determination without taking any further action under this Part.
98G(1)[Application and accompanying document to be served on other party] If section 98EA or 98F does not apply, the Registrar must cause a copy of:
(a)the application; and
(b)any document accompanying it;
to be served on the other party to the application.
98G(2)[Registrar to inform other party about reply] The Registrar must, at the same time, inform the other party to the application in writing that he or she may make any representation (in this section called a “reply”) regarding the application that he or she considers relevant.
98H(1)[Procedure for making decision] In making a decision under this Part in relation to an application, the Registrar:
(a) may act on the basis of:
(i)the application and the documents accompanying it; and
(ii)if action has been taken under section 98G - the reply (if any) to the application and the documents (if any) accompanying it; and
(b)may, but (subject to subsection (2)) is not required to, conduct any inquiry or investigation into the matter.
98H(2)[Parties to have opportunity to appear and be heard] The Registrar must give an opportunity to:
(a)the applicant; and
(b)if action has been taken under section 98G - the other party to the application;
to appear before the Registrar, and be heard by him or her, if they so wish.
98H(3)[Appearance in presence of other party not compulsory] Nothing in subsection (2) empowers the Registrar to compel a party to an application to appear before the Registrar in the presence of the other party.
98H(4)[Registrar not bound by rules of evidence] Any hearing before the Registrar, and any inquiry or investigation carried out by the Registrar, is to be carried out as the Registrar thinks fit and the Registrar is not bound by any rules of evidence.
98H(5) [Party to appear in person] A party to the application may not be represented by another person before the Registrar.
98L(1)[Subsequent application] A person who has made an application for a determination under this Part in respect of an administrative assessment of child support is not, for that reason, precluded from subsequently making another application in respect of that assessment if, because of circumstances existing at the time when the subsequent application is made, there are grounds for departing from the administrative assessment.”
Certain courts are, by Part 7 of the Assessment Act, given jurisdiction with respect to administrative assessments of child support and departures from such administrative assessments. By s 99, these courts are confined to the Family Court of Australia, the Supreme Court of the Northern Territory and each Family Court of a State and the courts of summary jurisdiction of each State and Territory.
Division 3 of Part 7 of the Assessment Act deals with appeals against incorrect assessments. It contains the following provisions:
“110(1)[Appeal by liable parent or carer] If a liable parent or a carer entitled to child support is aggrieved by any of the particulars of an administrative assessment, he or she may appeal to a court having jurisdiction under this Act against the assessment.
110(2)[Grounds of appeal] The grounds of the appeal may include:
(a)that an annual or daily rate of child support specified in the assessment was incorrectly assessed; or
(b)that the assessment has incorrectly determined the days in relation to which the child support is payable; or
(c)that an annual rate of child support specified in the assessment is no longer correctly assessed because the Registrar has failed to give effect to section 74 (Registrar to give effect to happening of child support terminating events etc.), or any other provision of this Act, in relation to the assessment.
110(3)[Time limit for appeal] The appeal must be instituted within the time prescribed by the Rules of Court or within such further time as is allowed under the Rules of Court.
110(4)[Parties] Subject to section 145 (Registrar may intervene in proceedings), the parties to the appeal are the liable parent, and the carer entitled to child support, in relation to whom the assessment was made.
111 A court hearing an appeal under this Division may make such orders in relation to the assessment to which the appeal relates as it considers appropriate, including an order setting aside, confirming or varying the assessment.
A right of appeal stricto sensu is given by s 110 to the Family Court by a person aggrieved “by any of the particulars of an administrative assessment”. But such an appeal is available only to correct errors in the particulars of the assessment such as errors listed in s 110(2). An administrative assessment cannot be judicially reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth): see definition of “decision to which this Act applies” in s 3(1) and Sch 1 par (s) to that Act.
Division 4 of Part 7 empowers the courts having jurisdiction under the Assessment Act to make orders for departure from administrative assessments in special circumstances. It includes the following provisions:
“116(1)[Application for order in special circumstances] Application may be made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case.
116(2)[Who may make application] An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.
116(3)[Parties] Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.
117(1)[Circumstances where court may make order] Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
117(2)[Grounds for departure] For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)the duty of the parent to maintain any other child or another person; or
(ii)special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or
(iv)high costs involved in enabling a parent to have contact with any other child or another person that the parent has a duty to maintain;
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)because of:
(A)high costs involved in enabling a parent to have contact with the child; or
(B)special needs of the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of:
(i)the income, earning capacity, property and financial resources of either parent or the child; or
(ii)any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
117(4)[Determination whether just and equitable to make order] In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, earning capacity, property and financial resources of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.
…
118(1) [Orders which court may make] The orders that a court may make under this Division are as follows:
(a)an order varying the rate of child support payable by the liable parent concerned;
…
118(2)[Different provision for different child support years] An order under this section may make different provision in relation to different child support years and in relation to different parts of a child support year.”
Section 141 in Division 8 of Part 7 provides:
141(1)[Powers of court] In exercising its powers under this Act, a court may do all or any of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
…
(h)make an order expressed to be retrospective to such day as the court considers appropriate;
…”
I accept that s 141(1)(h) the Assessment Act makes explicit the Court’s power under s 118(2) to make orders having retrospective effect and the Registrar’s power under s 98D(2) to make a departure from an administrative assessment that itself can have retrospective effect.
The Court’s jurisdiction under ss 116, 117 and related provisions of the Assessment Act, in contrast to its jurisdiction under s 110, has been described as “not an appeal in any sense, but a fresh application for a departure from the administrative assessment as amended by the registrar”. See In the marriage of Perryman (1993) 115 FLR 260 at 268.
I reject Mr Whittaker’s submission that the Legislature has invalidly sought to confer on the Registrar federal judicial power by the provisions authorising him to make assessments of child support and departures from those assessments.
“It is well settled that some powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch III of the Constitution, while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses”: Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 and HA Bachrach Pty Limited v The State of Queensland (1998) 195 CLR 547 at 562; [1998] HCA 54 at [15] - [16].
It is true that, in relation to the provisions governing how the Registrar is to make departures from administrative assessments of child support, he must by force of ss 98B and 98C the Assessment Act make determinations by reference to the same considerations that the Court has to take into account in exercising its jurisdiction under ss 116 and 117, a consideration that points to the Registrar having judicial power. But that is but one indication as to the nature of the function the Registrar performs. It is not decisive of the question: is the Registrar purporting to exercise federal judicial power?
It is not a novel proposition to hold that a function may be administrative even though exactly the same function, if required to be performed by a court, will be judicial. In The Queen v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, the High Court held that the legislative grant of power to the Registrar of Trade Marks to remove a mark from the Register on the ground of non-use did not involve the impermissible conferral of federal judicial power on that administrative official. This was so even though the legislative provision in question (s 23(1) the Trade Marks Act 1955 (Cth)), which also prescribed the criteria for removal, conferred this power on “the High Court or the Registrar” at the election of the party seeking removal, and, where application was made to the Registrar, rather than to the Court, provided by regs 22 and 53 to 59 for its exercise by that official only after the registered proprietor of the mark was given full notice of the applicant’s case and full opportunity to contest the application in a hearing before the Registrar, ie, in circumstances in which the Registrar was required to follow a typical judicial procedure in arriving at a conclusion involving disputed questions of fact. The leading judgment was given by Jacobs J. His Honour referred, at 8, to a passage in the judgment of Isaacs J in Shell Co Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, which contains the following:
“… some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another. … Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government. … The latter class is capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances. …”
Jacobs J also said at 9 - 10:
“… The determination of the facts, the existence of which Parliament has prescribed as a condition of the exercise of the administrative function of registration, is not necessarily the exercise of judicial power. The nature of the determination is not altered by the circumstance that an opportunity is given to others, who are strangers to the application, to be heard on the determination of those facts.”
As his Honour’s judgment at 8 and 9 shows, when the question as to the proper characterisation of a power not exclusive to one of the three arms of government arises, the intention of the legislature as to how the power is to be characterised in the circumstances of a particular case is an important (though not conclusive) consideration. See also Cominos v Cominos (1972) 127 CLR 588 at 605.
It is plain that the legislative intent, in conferring power to make assessments of child support and departures from those assessments on the Registrar, was to confer non-judicial, administrative power only. See s 4 and s 98A(1) of the Assessment Act. Both the liable parent and the carer entitled to child support are, by s 98B(2), parties to an application for a departure from administrative assessment of child support and (where the Registrar is not prepared summarily to refuse the departure application), the one is entitled by s 98G to notice of any such application brought by the other and the right to make any representation regarding the application he or she considers relevant. But the procedure the Registrar is directed to follow in making such a departure determination by s 98H is typically administrative: see s 98H(1)(a), (b) and 98H(4) and (5). Importantly, though an application be properly brought before the Registrar for determination by way of departure from an administrative assessment, that official can decline under s 98EA to make a decision if “the issues raised by the application are too complex to be dealt with under this Part” and leave it to the applicant to make application to the Family Court. That, I think, is a powerful indication against the Registrar’s power being characterised as judicial. One feature always present in judicial power (subject only to the ancillary power to postpone by adjournment the time for making the decision) is the duty to make a binding decision. The right to avoid making a decision is wholly foreign to judicial power.
That these provisions in the Assessment Act were intended by the Legislature to provide for administrative rather than judicial action is confirmed by the Explanatory Memorandum to the Child Support Legislation Amendment Bill 1992 which resulted in the enactment of Part 6A of the Assessment Act. Reference can be made to the Memorandum pursuant to s 15AB(1)(a) the Acts Interpretation Act 1901 (Cth). This Memorandum contains the following:
“Summary of proposed amendments
2.1 The Bill will introduce to the child support legislation a process for the administrative review of a child support assessment.
Background to the legislation
…
2.3 In the absence of a private agreement, the only method that is available at present to have the assessment reviewed is through the formal court process and specific provisions are set out in Division 4 of Part 7 of the Act under which they can be reviewed. A decision to have the assessment reviewed by a court is at the cost of the person initiating action and this can be considerable.
2.4 On the grounds of equity and justice an administrative review process should also be available to the parties and thus avoid the cost of an enforced application to a court as a first step in the review process.”
In Quinn, an opponent seeking deregistration of a mark had to elect whether to go to the High Court or the Registrar. The Registrar’s decision was conclusive (subject only to appeal under ss 23(7) and 111 the Trade Marks Act 1955 (Cth) to the High Court). Yet it was still held that the Registrar’s function was administrative. A departure assessment by the Registrar under Part 6A of the Assessment Act is not conclusive. A parent in the position of Mr Whittaker who is subject to an administrative assessment of child support can seek to have that assessment altered by application to the Registrar while retaining an entitlement to make a fresh application for alteration to the Family Court, if not satisfied with the Registrar’s determination. The Court exercises power under s 117 to reconsider the Registrar’s decision with respect to the departure assessment de novo by reference to the same considerations upon which the Registrar was required to act in making his decision. Moreover, the Court’s powers under s 117 extend to making orders by way of departure assessment in place of the Registrar’s challenged order that can have full retrospective effect - see s 141(1)(h) the Assessment Act - and overpayments made in compliance with the Registrar’s departure assessment, subsequently identified as such by the Court’s order under s 117, can be recovered by the payee - see s 79(1)(b) the Collection Act. This lack of finality of a decision of the Registrar is another pointer to the power not being judicial.
Further, a departure assessment by the Registrar under Part 6A of the Assessment Act is not a determination enforceable as such. It is enforceable only as a debt due to the Commonwealth, once registered under the Collection Act. That is “a strong factor” weighing against the characterisation of the power exercised by the Registrar as judicial (though such enforceability is not an exclusive test of the exercise of judicial power). See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257 and 268 - 269. In contrast, a court order under s 117 has the quality of immediate enforceability: s 119 provides that “when a decision of a court making an order under this Division becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision in relation to any administrative assessment that has been made in relation to the child, the carer entitled to child support and the liable parent concerned (whether by amending the assessment or otherwise)”.
Commonly, though not invariably, judicial power will involve “that power which is brought to bear … in making binding determinations as to the rights, liabilities, powers, duties or status put in issue in justiciable controversies and, in making binding adjustments of rights and interests in accordance with legal standards”. Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 per Gaudron J at 207; [70]. It can be said against Mr Whittaker that what the Registrar does, in considering whether to exercise the wide discretion conferred on him by ss 98B and 98C to make a departure from an administrative assessment, is consider whether he should create new rights, a factor which suggests that the power is administrative rather than judicial. See Re Dingjan; Ex parte Wagner at 360. Even such a power can, however, still be judicial if the legislature has conferred that power on a court and it “is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the Legislature and not by reference to [unspecified] policy considerations”. Re Dingjan at 360. Given the criteria established by s 117, there is no reason to doubt that judicial power is conferred on the courts by ss 116 and 117, though the cognate power conferred on the Registrar by ss 98B and 98C is administrative.
The decisions in question of the Registrar’s delegates being within a valid grant of power, there is no ground upon which relief by way of prerogative writ should be granted.
Relief by way of mandamus and prohibition under s 39B the Judiciary Act 1903 (Cth) is discretionary. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 per Gaudron and Gummow JJ at [53], Gleeson CJ at [5] and Hayne J at [171] agreeing, Kirby J at [146] to the same effect. Discretionary grounds on which the remedies can be refused include delay on the part of the prosecutor and the availability of a more convenient and satisfactory remedy: see Gaudron and Gummow JJ at [55].
In relation to the review officer’s decision of 30 November 1995 made after a hearing on 3 August 1995, Mr Whittaker complains that he was deprived of the right to participate in that hearing. At the time, he says he was employed as a field officer in a remote area in Papua New Guinea and was “often unable to be contacted at all”. It is apparent that before making this decision the review officer followed the procedure set out in s 98G the Assessment Act, with Mr Whittaker receiving a form of reply, completing it and sending it back to the review officer at the end of June 1995. It is also apparent, from what Mr Whittaker says, that the Registrar, on 19 July 1995, sent a letter to the post office box in Cairns nominated by him as his contact address advising of the hearing fixed for 3 August 1995. Mr Whittaker was still in Papua New Guinea and did not receive this letter, however, until the day after the hearing. I do not think Mr Whittaker was denied his statutory rights: s 98H(2) only obliges the Registrar to “give an opportunity to” the respondent to a departure application of the kind the subject of the decision of 30 November 1995 to appear before the Registrar and to be heard by the Registrar. The Registrar sent the notice of hearing in good time to the contact address nominated by Mr Whittaker. That Mr Whittaker himself failed to make arrangements necessary to ensure that the contents of his nominated post office box were communicated to him promptly does not mean he was denied his statutory opportunity to be heard.
The only other decision about which he makes specific complaint in his affidavits is that of 10 October 1996 by which the review officer refused Mr Whittaker’s request to alter the then-current administrative assessment. Mr Whittaker’s complaint here is that he was not given any opportunity to dispute certain of the matters relied on by the review officer. The Registrar may not have been obliged to give Mr Whittaker that opportunity: see s 98F the Assessment Act.
But, in any event, he has delayed bringing the present proceedings for nearly four years since the last of the decisions he now challenges was made. That delay is unexplained by any evidence. Mr Whittaker offered an explanation from the bar table to the effect that, because he is not able to afford legal advice, it has taken him a long time to identify the availability of prerogative relief from this Court as a possible avenue for making the challenge he has long wanted to make to these determinations. I cannot, in the face of such a long delay, attach much weight to that explanation in determining whether discretionary considerations require refusal of that relief. To set aside the determinations now would involve disturbing arrangements that have been in place for a long time.
Further, the legislature, in ss 116 and 117 the Assessment Act, has provided an avenue for challenging the determinations in question of the broadest kind. Mr Whittaker could have gone and still can go to the Family Court to seek the relief in relation to all three decisions to which he claims to be entitled. As I have mentioned, the court hearing any such application has full power to make retrospective orders determining Mr Whittaker’s liability in respect of child support in such amount or amounts and from such dates as it considers appropriate. The existence of that alternative remedy is, in the circumstances, a powerful consideration by itself for refusing prerogative relief. That Mr Whittaker has deliberately decided not to avail himself of that avenue for what are understandable, but nevertheless tactical forensic reasons, is of little weight in his favour in determining whether the relief sought should be refused on discretionary grounds.
The application is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate:
Dated: 30 November 2000
Counsel for the Applicant: The applicant appeared in person. Counsel for the First Respondent: D Bennett QC and E Ford Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: There was no appearance. Date of Hearing: 24 November 2000 Date of Judgment: 30 November 2000
2
10
0