House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP)

Schedule 3 - SSAT review of child support decisions

Summary

This Schedule expands the role of the Social Security Appeals Tribunal to include independent review of child support decisions, providing a review mechanism that is inexpensive, fair, informal and quick.

Background

Presently, if a carer or liable parent does not agree with a decision of the Child Support Registrar, he or she may object through the internal objection procedure. If the carer or liable parent is still dissatisfied with the decision, he or she must generally appeal to a court with Family Law jurisdiction. A parent who appeals to a court must bring their action against the other parent in an adversarial process. The child support legislation makes the carer and the liable parent, rather than the Child Support Registrar, parties to the appeal. This is perceived to be an unfair aspect of the child support system. The court process can be expensive and time consuming, as well as amplifying animosity between separated parents. Consequently, external review of the Registrar's decisions is not often sought.

Schedule 3 introduces review by an independent external body, the Social Security Appeals Tribunal (SSAT), of child support decisions which have been reviewed under the Child Support Agency's internal review procedure. The purpose of introducing this is to provide external review mechanism which is faster, less formal and less expensive than court action, while still providing just and fair outcomes. The Registrar is the primary respondent to an application for appeal, although the other parent is also a party (with the exception of limited circumstances in which the outcome cannot affect the other parent). It is an inquisitorial, rather than an adversarial, process, which may assist in reducing tensions between separated parents when resolving child support issues. Most of the current limited AAT appeals, relating to decisions primarily affecting only one parent, will now be performed by the SSAT.

Parents, and certain other people affected by a child support decision, may appeal a decision of the SSAT to a court on a question of law. Parents can still appeal directly to the courts, in a number of situations. These are applications about the making of assessments requiring parentage declarations, applications to terminate an agreement, applications for child support in a non-periodic form, applications for urgent child support pending the making of an assessment, and applications for departure determinations in some limited circumstances, such as where the decision is too complex to be finalised administratively, or the applicant seeks to vary a child support assessment from more than 18 months ago.

SUSPENSION DETERMINATIONS - PENDING PARENTAGE DECLARATIONS

Subsection 79A(1) of the Child Support Registration and Collection Act is also amended to provide that if the payer disputes the administrative assessment on the basis that the payer is not a parent of the child, the Registrar, rather than having a discretion to suspend payment to the payee, must make a suspension determination. This is in order to minimise the effect of incorrect payments in the event that the payer is found not to be the father. This change is part of larger reforms to the process of applying parentage declarations for child support purposes (see Schedule 4, under the heading 'Parentage declarations where the payer is not a parent of the child').

Explanation of the changes

Part 1 - Amendments

Child Support Assessment Act

Item 1 inserts into section 5 a definition of final and provides that in relation to a court, it has the meaning given by section 144.

Item 2 inserts into section 5 a definition of the Child Support Registration and Collection Act .

Items 3 and 4 deal with changes to the notification provisions to include reference to the appeal rights which will be available after the internal review procedure.

Item 3repeals and substitutes section 33, which deals with the notice to be given to a person whose application for administrative assessment of child support was unsuccessful. Subsection 33(1) provides that if the Registrar refuses to accept an application for administrative assessment of child support for a child, the Registrar must immediately notify the applicant in writing. It is identical to the current subsection 33(1). Subsection 33(2) sets out the situations in which subsection 33(3) applies. It provides that if the refusal to accept the application was because the application failed to establish that the person from whom the application sought child support is a parent of the child, then the notice must include, or be accompanied by, a statement that this is the reason for the refusal. Subsection 33(3) provides that the notice must also state that the applicant may apply to a court under section 106A for a declaration that the applicant is entitled to an administrative assessment (or to have the Registrar reconsider the refusal of the application if other reasons also applied) on the basis the person from whom child support was sought is a parent of the child (see paragraph 33(3)(b)). Subsection 33(4) provides that if subsection 33(3) does not apply (that is, if the refusal was on grounds other than failure to establish that the person from whom child support was sought is a parent of the child), the notice must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the decision; and

(b)

if aggrieved by the later decision, the person may apply to the SSAT for review of the later decision.

Subsection 33(5) provides that a contravention of subsection (3) or (4), for example, if the notice does not state that the person may apply to the SSAT for review of the decision, does not affect the validity of the decision to refuse the application.

Item 4 repeals and substitutes subsection 34(2). Paragraph 34(2)(a) provides that a notice given when the Registrar accepts the application, to a person from whom child support for a child is sought must include, or be accompanied by, a statement to the effect that he or she may apply to a court for a declaration that the applicant was not entitled to administrative assessment of child support for the child because the person is not a parent of the child. Paragraph 34(2)(b) provides that the notice must include, or be accompanied by, a statement to the effect that the person from whom, or to whom, the application sought payment of child support may object to the decision (other than on the ground that the person is not a parent of the child) (see subparagraph 34(2)(b)(ii)), and .if aggrieved by a later decision on an objection, no matter who lodged the objection, that person may apply to the SSAT (see subparagraph 34(2)(b)(iii). This ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in subparagraph 34(2)(b)(iii) does not lose his or her right to apply to the SSAT for review of the decision.

The following items reflect consequential changes resulting from the consolidation of the provisions relating to internal review of the Child Support Assessment Act with those in the Child Support Registration and Collection Act, and the changed external review procedures generally substituting the SSAT for the courts and AAT.

Item 5 amends subsection 60A(3) by omitting the words 'Part 6B and section 110' and substituting the words 'Parts VII, VIIA and VIII of the Registration and Collection Act'. This change is required because provisions relating to the internal objections procedure for assessments are being moved from the Child Support Assessment Act to the Child Support Registration and Collection Act.

Item 6 repeals and substitutes subsection 60B(2). It provides that the notice must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the decision; and

(b)

if aggrieved by the later decision, the person may apply to the SSAT for review of the later decision.

The current paragraph 60B(2)(b) provides that the notice must state that the person can appeal to a court. This change in paragraph 60B(2)(b) to refer to the SSAT reflects that the SSAT and not a court will first review decisions. New subsection 60B(3) provides that a contravention of subsection 60B(2), for example, if notice does not set out that a person may apply to the SSAT, does not affect the validity of the decision.

Item 7 repeals and substitutes subsection 64A(6). It provides that the notice must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the decision; and

(b)

if aggrieved by the later decision, the person may apply to the SSAT for review of the later decision.

New paragraph 65A(6)(c), which provides that a notice given to a person must state that if a person is aggrieved by a decision, he or she may apply to the SSAT for review of a decision. This replaces a reference to a person being notified that he or she may apply to the AAT for a review of the decision.

Item 8 repeals and substitutes subsection 66C(2). It provides that the notice must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the decision; and

(b)

if aggrieved by the later decision, the person may apply to the SSAT for review of the later decision.

The current paragraph 66C(2)(b) provides that the notice must state that the person can appeal to a court. New paragraph 66C(2)(b) reflects that the SSAT and not a court will first review decisions. New subsection 66C(3) provides that a contravention of subsection 66C(2), for example, if the notice does not refer to a person's right to apply to the SSAT, does not affect the validity of the decision.

Item 9 omits from subsection 70(1) the words 'Division 3 of Part 7' and substitutes the words 'Part VIIA or Subdivision 3 of Part VIII of the Registration and Collection Act,'

Item 10 omits from section 72 the words 'Division 3 of Part 7' and substitutes the words 'Part VIIA or Subdivision B of Division 3 of Part VIII of the Registration and Collection Act'.

Item 11 omits from subparagraph 76(3)(a)(i) the words 'this Act' and substitutes the words 'the Registration and Collection Act'.

Item 12 repeals subparagraph 76(3)(a)(ii) and substitutes it with a new subparagraph 76(3)(a)(ii), which provides that a notice of assessment must include a notice which provides that if a parent or liable carer is aggrieved by a decision on an objection (no matter who lodges the objection), he or she may apply to the SSAT for a review of the decision. This ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in subparagraph 76(3)(a)(ii) does not lose his or her right to apply to the SSAT for review of the decision. The current subparagraph 76(3)(a)(ii) provides that the notice must state that the person can appeal to a court. This change reflects that the SSAT and not a court will first review decisions.

Item 13 repeals and substitutes subsection 96(2). It provides that the notice must include, or be accompanied by, a statement that specifically draws the attention of the parties to the right:

(a)

to object to the decision; and

(b)

if aggrieved by the later decision (no matter who lodges the objection), the person may apply to the SSAT for review of the later decision.

New paragraph 96(2)(b) provides that if the applicant is aggrieved by a decision, he or she may apply to the SSAT for review of the decision. The current paragraph 66C(2)(b) provides that the notice must state that the person can appeal to a court. This change reflects that the SSAT and not a court will first review decisions.

Item 14 repeals and substitutes section 98JA. New subsection 98JA(1) provides that if the Registrar refuses to make a determination, the Registrar must serve notice in writing on each of the parties to the proceeding. Current subsection 98JA(1) only requires the Registrar to serve notice on the applicant. New subsection 98JA(2) sets out that a notice must include, or be accompanied by, a statement to the effect:

(a)

that the party may object to the decision; and

(b)

that if the party is aggrieved by a later decision on an objection to the original decision (no matter who lodges the objection), the party may:

(i)

if the original decision was made under section 98E (issues too complex to be determined administratively)-apply to a court having jurisdiction under this Act for an order under Division 4 of Part 7; or

(ii)

otherwise-apply, subject to the Child Support Registration and Collection Act, to the SSAT for review of the later decision.

Paragraph 98JA(2)(b) ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in paragraph 98JA(2)(b) does not lose his or her right to apply to a court or the SSAT for review of the decision. New subsection 98JA(3) provides that a contravention of subsection 98JA(2), for example, if the notice does not set out that a person may apply to the SSAT for review of the decision, does not affect the validity of the decision.

Item 15 inserts at the end of Division 3 of Part 6A a new subsection 98RA. Like section 98JA (see item 18 ) it deals with the appeals process in relation to matters which are too complex for the Registrar to deal with administratively. New subsection 98JR(1) provides that if, after having notified the parties under section 98M, the Registrar decides not to make a determination, the Registrar must serve notice in writing on each of the parties to the proceeding.

Subsection 98RA(2) sets out that a notice must include, or be accompanied by, a statement to the effect:

(a)

that the party may object to the decision; and

(b)

that if the party is aggrieved by a later decision on an objection to the original decision (no matter who lodges the objection), the party may:

(i)

if the original decision was made under section 98E (issues too complex to be determined administratively)-apply to a court having jurisdiction under this Act for an order under Division 4 of Part 7; or

(ii)

otherwise-apply, subject to the Child Support Registration and Collection Act, to the SSAT for review of the later decision.

Paragraph 98RA(2)(b) ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in paragraph 98RA(2)(b) does not lose his or her right to apply to a court or the SSAT for review of the decision. New subsection 98RA(3) provides that a contravention of subsection 98RA(2), for example, if the notice does not mention a person's right to apply to the SSAT for review of a decision, does not affect the validity of the decision.

Item 16 repeals Part 6B. This is because the internal objections procedure is being moved from the Child Support Assessment Act to the Child Support Registration and Collection Act, and review by the AAT of certain decisions is being replaced by review by the SSAT.

Item 17 amends Part 7 by repealing the heading and substituting 'Part 7 - Court review of certain decisions'. Amendments are made to reflect generally the more limited jurisdiction of the courts under the Acts, based on substitution of the SSAT as the first point of external review.

Part 7 - Court review of certain decisions

Item 18 inserts the following before Division 1 of Part 7:

Division 1A - Preliminary

New section 98W sets out a simplified outline of Part 7, including setting out the jurisdiction of courts, the process for reviewing decisions, and the orders and declarations the court may make.

Item 19 amends Division 1 of Part 7 by repealing and substituting the heading.

Division 1 - Jurisdiction of courts

Item 20 inserts before section 99 a new section 98X, which sets out a simplified outline of Division 1.

Item 21 amends Division 2 of Part 7 repealing the heading and substituting 'Division 2 - Entitlement to administrative assessment'. This change is required because Division 2 will only deal with declarations about whether a child support assessment can or cannot be made, based on a court making a parentage declaration. The other matters that are presently dealt with by Division 2, for example, that a person from whom an application sought payment of child support was not resident in Australia on the day the application was made, will be dealt with by the internal objections procedure, and then review by the SSAT or courts.

Division 2 - Entitlement to administrative assessment

Item 22 repeals and substitutes sections 106 and 106A. New section 106 is a simplified outline of Division 1.

New section 106A deals with applications requiring parentage declarations by unsuccessful carer applicants.

Subsection 106A(1) provides that that section 106A applies if the Registrar refuses to accept from an applicant a carer application for administrative assessment of child support, and one of the reasons for the Registrar so refusing was that the person from whom the application sought payment was not a parent of the child.

Applications for declarations

Subsection 106A(2) provides that the applicant may apply to a court having jurisdiction under this Act for a declaration that:

(a)

if the reason referred to in paragraph 106A(1)(b) (that is, that the that Registrar was not satisfied under section 29 that the person from whom the application sought payment of child support is a parent of the child) was the only reason for the Registrar refusing to accept the application-the applicant is entitled to an administrative assessment of child support for the child because the person from whom the application sought payment of child support is a parent of the child; and

(b)

if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application-the applicant is entitled to have the Registrar reconsider the application under Division 2 of Part 4 because the person from whom the application sought payment of child support is a parent of the child.

Subsection 106A(3) provides that the application must be made within the time prescribed by the Rules of Court, or such further time is allowed by the Rules of Court.

Parties

Subsection 106A(4) sets out that, subject to the Registrar's right to intervene in proceedings, the parties to the proceeding are the applicant and the person from whom the application sought payment of child support.

Declarations

Subsection 106A(5) provides that the court may grant the declaration if the court is satisfied that:

(a)

if the reason referred to in paragraph (1)(b) (that is, that the Registrar was not satisfied under section 29 that the person from whom the application sought payment of child support is a parent of the child) was the only reason for the Registrar refusing to accept the application-the person is entitled to administrative assessment of child support because the person from whom the application sought payment of child support is a parent of the child; or

(b)

if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application-the applicant is entitled to have the Registrar reconsider the application under Division 2 of Part 4 because the person from whom the application sought payment of child support is a parent of the child.

Subsection 106A(6) provides that if the court grants the declaration:

(a)

if the reason referred to in paragraph 106A(1)(b), that is, that the Registrar was not satisfied under section 29 that the person from whom the application sought payment of child support is a parent of the child, was the only reason for the Registrar refusing to accept the application-the Registrar is taken to have accepted the application for administrative assessment of child support; and

(b)

if the reason referred to in paragraph 106A(1)(b) was one of the reasons for the Registrar refusing to accept the application-the Registrar must reconsider the application under Division 2 of Part 4 (decision on application).

If, as a result of the reconsideration, the Registrar refuses to accept the application on other grounds, the application may be reviewed through the internal review process, and then proceed to review by the SSAT or a court (see item 3 above).

The following items limit the scope of declarations by a court that an assessment should not have been under section 107, to parentage issues.

Item 23 adds at the end of subsection 107(1) the words 'on the grounds that the person is not a parent of the child concerned'. It also adds a note that explains that the heading to section 107 is replaced with a new heading: 'Declaration that a person is not entitled to administrative assessment,'

Item 24 repeals subsections 107(1A) and (1B) and substitutes a new subsection 107(1A). New subsection 107(1A) provides that a person from whom an application sought payment of child support must not apply for a declaration in respect of a child if a court has already declared under section 106A that the applicant was entitled to an administrative assessment of child support for the child, or to have the Registrar reconsider an application, because the person is a parent of the child. A note following subsection 107(1A) explains that in that case, the person may be able to appeal against the declaration under Division 1 of Part 7.

Item 25 repeals and substitutes subsection 107(4). New subsection 107(4) provides that the court may grant the declaration if the court is satisfied that the applicant was not entitled to an administrative assessment of child support for the child because the person from whom the application sought payment was not a parent of the child. Current subsection 107(4) provides that the court may also make such a declaration if it is satisfied that the person was not a resident of Australia. However, as Division 2 now only deals with parentage declarations, and review of residency decisions will be by the SSAT, this aspect of current subsection 107(4) is no longer relevant.

Item 26 repeals paragraph 109(2)(b). This paragraph is being repealed because the only grounds for application under section 107, to which paragraph 109(2)(a) refers and which is the first limb of satisfying subsection 109(2), is that the person was not a parent of a child concerned. Paragraph 109(2)(b) is, therefore, unnecessary.

Item 27 amends Division 6 of Part 7 by repealing the heading and substituting 'Division 6 - Setting aside accepted child support agreements'.

Division 6 - Setting aside accepted child support agreements

Item 28 repeals Subdivision A of Division 6 of Part 7. This Subdivision deals with appeals to the court against acceptance or non-acceptance of agreements. It is being repealed because a decision of the Registrar in relation to acceptance or non-acceptance of child support agreements will become decisions which are appealable to the SSAT (see item 13 of the table in section 80 in item 73 ). A person will then be able to appeal a decision of the SSAT in relation to the acceptance or non-acceptance of an agreement to a court on a question of law.

Item 29 amends Subdivision B of Division 6 of Part 7 by repealing the heading.

Item 30 inserts before section 136 a new section 135, which is a simplified outline of Division 6.

Item 31 omits from section 138 the word 'Subdivision' and substitutes it with 'Division'. This corrects an incorrect reference.

Item 32 inserts before section 139 a new section 138A, which is a simplified outline of Division 6.

Item 33 repeals and substitutes paragraph 139(2A)(d). Paragraphs 139(2A)(d) and (e) set out when a court's urgent maintenance order ceases to have effect.

Paragraph 139(2A)(d) provides that if a decision of the Registrar does not become final, and one of the reasons for the Registrar refusing to accept the application for administrative assessment was that the Registrar was not satisfied under section 29 that the person was a parent of the child, an urgent maintenance order by the court ceases to have effect at the time when a court finally decides (whether under section 106A or on appeal from a decision of a court under that section) that the person from whom the application sought payment of child support is not a parent of the child.

Paragraph 139(2A)(e) provides that in any other case, for example, if the proposed payer was not an Australian resident, the court order ceases to have effect when a decision of the SSAT, or of a court, deciding that the applicant was not entitled to administrative assessment of child support, becomes final.

Item 34 repeals and substitutes subsection 139(2B). New subsection 139(2B) provides that a decision of the Registrar refusing to accept an application for administrative assessment of child support becomes final if an application to a court under section 106A (declarations of entitlement to administrative assessment) or to the SSAT is not made within the time period for doing so. A note at the end of subsection 139(2B) explains that subsection 110W(1) of the Child Support Registration and Collection Act sets out when decisions of the SSAT become final.

Item 35 inserts before section 141 a new section 140A, which sets out a simplified outline of Division 8.

Item 36 inserts before section 144 a new section 143A, which sets out a simplified outline of Division 9.

Item 37 repeals and substitutes subsection 151C(5). New subsection 151C(5) provides that a notice to a person in relation to the Registrar's decision about an application for assessment/agreement to continue beyond a child's eighteenth birthday must include, or be accompanied by, a statement to the effect that:

It provides that the notice must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the decision; and

(b)

if aggrieved by the later decision on an objection, (no matter who lodges the objection), the person may apply to the SSAT for review of the later decision.

Paragraph 151C(5)(b) ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in paragraph 151C(5)(b) does not lose his or her right to apply to the SSAT for review of the decision.

Child Support Registration and Collection Act

Item 38 omits from the title the word 'related' and substitutes 'other', reflecting the increased scope of the Child Support Registration and Collection Act, which will now provide for both internal review (objections) and external review (generally SSAT appeals) of decisions of the child support registrar. Various consequential amendments are necessary to ensure all relevant concepts are defined, and links to the Child Support Assessment Act are made.

Item 39 inserts into subsection 4(1) a definition of the term AAT , which is defined as the Administrative Appeals Tribunal.

Item 40 inserts into subsection 4(1) a definition of the term administrative assessment , which is defined as having the same meaning as in the Child Support Assessment Act.

Item 41 inserts into subsection 4(1) a definition of appealable collection refusal decision . It defines appealable collection refusal decision as a decision resulting in the failure of the Registrar to collect an amount payable under an enforceable maintenance liability. These decisions are amounts that have become due and payable and remained unpaid for at least six months if proceedings for recovery have not been instituted in a court, or proceedings for recovery have been instituted and at least three months have passed since those proceedings were instituted.

Item 42 amends the definition of appealable refusal decision in subsection 4(1) by adding at the end of paragraphs (a), (aaa), (aa), (b), (ba) and (bb) the word 'or'. This is to clarify that these paragraphs are alternatives, and do not need to be satisfied cumulatively.

Item 43 omits from the definition of appealable refusal decision in subsection 4(1) the words 'section 71 or 71A' and substitutes 'section 71, 71A or 71C'. This amendment ensures that payer, as well as a payee, can object to the Registrar's decision to refuse to credit an amount under section 71C. The amendments in 1998 to subparagraph 84A(1)(a) allowed a payee to object to the Registrar's decision to refuse to credit an amount under section 71C. The 2001 amendments to the child support law should have extended this to the payer also. The present amendment corrects this.

Item 44 amends the definition of appealable refusal decision in subsection 4(1) by adding at the end of paragraph (c) the word 'or'. This is to clarify that these paragraphs are alternatives, and do not have to be satisfied cumulatively.

Item 45 amends the definition of appealable refusal decision in subsection 4(1) by repealing paragraphs (d) and (e), because this concept has now been included as an appealable collection refusal decision.

Item 46 inserts into subsection 4(1) a definition of Assessment Act and provides that it means the Child Support Assessment Act.

Item 47 amends the paragraph (a) of the definition of court order in subsection 4(1) by inserting the words 'this Act,' before the words 'the Child Support (Assessment) Act 1989'.

Item 48 inserts into subsection 4(1) a definition of final , and provides that in relation to a decision of the SSAT, it has the meaning given by subsection 110W(1), and in relation a decision of the court, it has the meaning given by subsections 110W(2) and (3).

Item 49 inserts into subsection 4(1) a definition of reconsideration and provides that it has the meaning given by section 110Q.

Item 50 inserts into subsection 4(1) a definition of resumption determination and provides that it means a determination made by the Registrar under subsection 79A(3) or 79B(3).

Item 51 inserts into subsection 4(1) a definition of SSAT and provides that it means the Social Security Appeals Tribunal.

Item 52 inserts into subsection 4(1) a definition of SSAT Executive Director and provides that it means the Executive Director of the SSAT.

Item 53 inserts into subsection 4(1) a definition of suspension determination and provides that it means a determination made by the Registrar under subsection 79A(1) or 79B(1).

Item 54 amends subsection 4(1) by repealing the definition of Tribunal . This definition is no longer accurate because it refers only to the AAT.

Item 55 repeals and substitutes paragraph 4(4)(a). New paragraph 4(4)(a) refers to the Registrar being required to do something under a number of sections listed in the paragraph. Current paragraph 4(4)(a) refers to the Registrar being required to do something referred to in paragraph (a), (b) or (d) of the definition of appealable refusal decision in subsection 4(1). However, as paragraph (d) of the definition of appealable refusal decision is being repealed (see item 45 ), this change ensures that paragraph 4(4)(a) still has its intended effect in relation to the sections listed.

Items 56 and 57 omit from subsection 7(3) two references to 'and the Tribunal' and substitutes the words 'the SSAT or the AAT'. This change is required to ensure that the SSAT is also subject to the restrictions and has powers imposed or created by any corresponding State laws.

Item 58 amends paragraphs 23(1)(a), 33(1)(a), and 37(a) by inserting before the words 'the Child Support (Assessment) Act 1989' the words 'this Act,'. These changes are required because many of the powers of a court to review child support decisions are now set out in Child Support Registration and Collection Act, as well as in the Child Support Assessment Act.

Currently, the Registrar is not required to inform affected parties of many registration decisions. Division 4 is amended to ensure that notice is given, and to substitute notification of application for review to the SSAT for the previous court application.

Item 59 inserts at the end of Part III a new Division:

Division 4 - Notices in respect of registration decisions

New section 42C provides that notices must be given to payers and payees in relation to registration decisions. In particular, subsections 42C(1), (2) and (3) provide that the Registrar must, as soon as practicable after registering, varying the particulars of, or deleting, a registrable maintenance liability in the Child Support Register, or making an appealable refusal decision in relation to a registrable maintenance liability, serve a notice on the payer and payee. In relation to registering or varying particulars, the Registrar is not required to serve a notice under the Child Support Registration and Collection Act if he or she has already done so under the Child Support Assessment Act. Subsection 42C(4) sets out that these notices must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the particulars of the assessment; and

(b)

if dissatisfied by a later decision of the Registrar on an objection to the original decision (no matter who lodges the objection), apply to the SSAT for review of the later decision.

Paragraph 42C(4)(b) ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in paragraph 42C(4)(b) does not lose his or her right to apply to the SSAT for review of the decision. New subsection 42C(5) provides that a contravention of subsection 42C(4), for example, if the notice does not set out that a person may apply to the SSAT for review of a decision, does not affect the validity of the decision.

Item 60 repeals and substitutes subsection 54(3). New subsection 54(3) provides that if the Registrar makes a decision under subsection 54(1) or (2) to remit only part of a penalty or not to remit any part of a penalty, the Registrar must serve notice on the person by whom the penalty is, or but for the remission would be, payable. Current subsection 54(3) only applies to amounts payable under subsection 54(2), meaning that the change in this item extends the operation of subsection 54(3). Subsection 42C(4) sets out that these notices must include, or be accompanied by, a statement to the effect that:

(a)

the applicant may object to the particulars of the assessment; and

(b)

if dissatisfied by a later decision of the Registrar on an objection to the original decision, apply to the SSAT for review of the later decision.

New subsection 54(5) provides that a contravention of subsection 54(4), for example, if the notice does not set out that a person may apply to the SSAT for review of a decision, does not affect the validity of the decision.

Item 61 omits from section 68 the words 'where' and substitutes '(1) If'. This is required because of the addition of subsections to section 68.

Item 62 adds at the end of paragraph 68(a) the word 'or'. This clarifies that paragraphs 68(a) and (b) are alternatives and are not intended to be satisfied cumulatively.

Item 63 adds at the end of subparagraph 68(b)(i) the word 'and'. This clarified that the various subparagraphs of paragraph 68(b) are intended to be read cumulatively.

Item 64 adds at the end of section 68 new subsections 68(2) and (3). New subsection 68(2) provides that if the Registrar makes a decision under subsection 68(1), in relation to a late payment penalty, to remit only part of a penalty or not to remit any part of a penalty, the Registrar must serve notice on the person by whom the penalty is, or but for the remission would be, payable. Subsection 68(3) sets out that these notices must include, or be accompanied by, a statement to the effect that:

(a)

the person may object to the particulars of the assessment; and

(b)

if dissatisfied by a later decision of the Registrar on an objection to the original decision, apply to the SSAT for review of the later decision.

New subsection 68(4) provides that a contravention of subsection 68(3), that is, if there is, for example, an error in the notice, does not affect the validity of the decision.

Item 65 inserts after section 71D a new section 71E. It provides that notices must be given to payees and payers in relation to registration decisions. Section 71E is being inserted because currently, the Child Support Registration and Collection Act does require the Registrar to give notices in relation to the crediting of non-agency payments. As these notices are the basis for people knowing about, and being able to object to, a decision (see new section 80), it is important that these notices are provided.

Subsection 71E(1) provides that section 71E applies if the Registrar decides to credit, under section 71, 71A or 71C, an amount received by the payee of an enforceable maintenance liability against the liability of the payer of that enforceable maintenance liability, or received by a third party.

Subsection 71E(2) provides that as soon as practicable after the Registrar credits the amount, the Registrar must serve a notice in writing of the decision on the payee and the payer.

Subsection 71E(3) sets out the content of notices. It provides that a notice must include, or be accompanied by, a statement to the effect that:

(a)

the applicant may object to the particulars of the assessment; and

(b)

if dissatisfied by a later decision of the Registrar on an objection to the original decision (no matter who lodges the objection), apply to the SSAT for review of the later decision.

Paragraph 71E(3)(b) ensures that if the other party lodged the objection, and the matter is resolved to that person's satisfaction, the person referred to in paragraph 71E(3)(b) does not lose his or her right to apply to the SSAT for review of the decision.

New subsection 71E(4) provides that a contravention of subsection 42C(4), for example, if the notice does not set out that a person may apply to the SSAT for review of a decision, does not affect the validity of the decision.

Item 66 makes a minor technical amendment to section 79A.

Item 67 inserts before section 79A a heading:

Division 3 - Suspension determinations

Item 68 repeals and substitutes section 79A. Currently, section 79A of the Child Support Registration and Collection Act provides that the Registrar may make a determination suspending a payee's entitlement to be paid collected amounts where the payer has made an application under section 107 of the Child Support Assessment Act seeking a declaration that the assessment should not have been issued. New subsection 79A(1) provides that if the payer has made an application under section 107 for a declaration that the payer is not a parent of the child, and the application is pending, the Registrar, rather than having a discretion to suspend payment, must make a suspension determination. This change is in order to minimise the effect of incorrect payments in the event that the payer is found not to be the father.

New subsection 79A(2) provides that if the Registrar makes a suspension determination on a day, the payee is not entitled to be paid an amount from that payer for the child unless and until the Registrar makes a resumption determination under subsection 79A(3). Two notes following subsection 79A(2) explain several other consequences which flow if the payer is found not to be a parent, and if the Registrar makes a suspension determination.

New subsection 79A(3) provides that if the Registrar has made a suspension determination, and is satisfied that the payer's application for a parentage declaration has been finally refused by the court, withdrawn or struck out, the Registrar must make a resumption determination. A resumption determination provides that the payee is again entitled to be paid an amount from the payer, and if any amounts were not paid because of the suspension determination, then the payee is entitled to be paid the arrears. A note following subsection 79A(3) explains that the Registrar must vary the Child Support Register after making the resumption determination in accordance with section 79C.

Item 68 also inserts a new section 79B, which deals with suspension determinations if review by a court or the SSAT of the payee's entitlement to administrative assessment is pending. Subsection 79B(1) provides that the Registrar may make a determination (a suspension determination) that a payee of a registered maintenance liability in relation to a child is not entitled under subsection 76(1) to be paid an amount that is payable for the child by the payer of the liability if:

(a)

if following proceeding has been brought by the payer under table item 9 of the table in subsection 80(1) (that is, to accept an application for administrative assessment under subsection 30(1)), and the proceeding is pending:

(i)

a proceeding that the child was not a child in relation to whom the application for administrative assessment was entitled to be made;

(ii)

a proceeding that the applicant was not a person entitled to make an application for the child;

(iii)

a proceeding that the person from whom the application sought payment was not a resident of Australia;

(b)

a proceeding has been brought by the payer under Subdivision B of Division 3 of Part VIII (court review) in relation to the payee's entitlement to administrative assessment of child support and the proceeding is pending under that Subdivision.

Subsection 79B(2) provides that if the Registrar makes a suspension determination on a day, the payee is not entitled to be paid an amount from that payer for the child unless and until the Registrar makes a resumption determination under subsection 79B(3). Two notes following subsection 79B(2) explain several other consequences which flow if the payee is found not to be entitled to assessment, and if the Registrar makes a suspension determination.

New subsection 79B(3) provides that if the Registrar has made a suspension determination, and is satisfied that the payer's application has been finally refused by the court, withdrawn or struck out, the Registrar must make a resumption determination. A resumption determination provides that the payee is again entitled to be paid an amount from the payer, and if any amounts were not paid because of the suspension determination, then the payee is entitled to be paid that amount. A note following subsection 79B(3) explains that the Registrar must vary the Child Support Register after making the resumption determination in accordance with section 79C.

Item 68 also inserts a new section 79C. It deals with varying particulars after a suspension or resumption determination is made. Subsections 79C(1) and (2) provide that immediately after making either a suspension or a resumption determination, the Registrar must vary the Child Support Register in whatever way that the Registrar considers necessary or desirable to give effect to the determination. A note following subsection 72C(1) explains that as soon as practicable after varying particulars under subsection 72C(1), the Registrar must serve a notice under section 42C.

Item 69 repeals and substitutes Part VII.

Part VII - Internal objections procedures for certain decisions

This new Part VII includes provisions relating to internal review which have been transferred from the Child Support Assessment Act, and consolidates them with provisions about the internal review procedure contained in the Child Support Registration and Collection Act. The objections rights, both in relation to the decisions which may be reviewed, and the parties who may apply for such review, are largely unchanged.

Division 1 - Preliminary

New section 79D sets out a simplified outline of Part VII.

New section 79E sets out that the objects of Part VII are to provide for internal reconsideration of decisions of the Registrar before the decisions may be reviewed by the SSAT under Part VIIA.

Division 2 - Decisions against which objection may be lodged

A table in subsection 80(1) sets out the decisions against which objection may be lodged, and who may object to that decision. Subsection 80(2) provides that an objection to a decision of the Registrar as to particulars entered in the Child Support Register in relation to a registrable maintenance liability may be lodged on the ground that the relevant entry does not relate to a registrable maintenance liability, or on any other ground.

Subsection 80(3) provides that an objection to a decision of the Registrar as to particulars entered in the Child Support Register in relation to a registrable maintenance liability may only be made against the particulars varied, and any other particulars affected by the variation.

Subsection 80(4) provides that an objection to a decision of the Registrar to accept an application for administrative assessment under the Child Support Assessment Act may not be lodged on the ground that the person is not the parent of the child concerned. A note following subsection 80(4) explains that an application for a parentage declaration may be made under section 107 of the Child Support Assessment Act.

Subsection 80(5) provides that an objection to a decision of the Registrar to refuse to accept an application for administrative assessment under the Child Support Assessment Act may not be lodged on the ground that the person is not the parent of the child concerned. A note following subsection 80(5) explains that an application for a parentage declaration may be made under section 106A.

Division 3 - Time limits on lodging objections

New section 81 deals with time limits on lodging objections. Subsection 81(1) provides that an objection to a decision (other than an objection to an appealable collection refusal decision) must be lodged by a person within 28 days after that written notice is served on the person

Subsection 81(2) provides that an objection to an appealable collection refusal decision must be lodged within 28 days after the decision first comes to the notice of the person. This difference in time limits on objections between appealable collection refusal decisions and other decisions arises because the Registrar will notify a person of all decisions other than an appealable collection refusal decision. However, an appealable collection refusal decision is defined as a decision resulting in a failure to collect an amount payable (see item 41 ). Consequently, a person would only become aware of an appealable collection refusal decision through means other than a notice from the Registrar. That is, a person would become aware through the Registrar's failure to recover and disburse the uncollected child support.

New section 82 deals with applications for extensions of time. Subsection 82(1) provides that even if the period for the lodging an objection under section 81 has ended, the person may send the objection to the Registrar together with an application in writing requesting the Registrar to treat the objection as having been duly lodged. Subsection 82(2) provides that the application must state fully and in detail the grounds of the application, including why the person failed to lodge the objection as required by section 81.

New section 83 deals with consideration of applications for extensions of time for lodging objections. Subsection 83(1) provides that if an application is sent to the Registrar under section 82 in relation to an objection under Part VII, the Registrar must consider the application, and within 60 days, either grant or refuse the application, and if it is granted, deal with the objection under subsection 87(1). Subsection 83(2) is a deeming provisions, and provides that if the Registrar does not either grant or refuse to grant the application within 60 days, the Registrar is taken to have refused to grant the application. Subsection 83(3) provides that the Registrar must serve notice in writing of the decision on the person who made the application. Subsection 83(4) provides that the notice must include, or be accompanied by, the reasons for the decision, and a statement to the effect that if the person is aggrieved by the decision, he or she may apply to the SSAT for review of the decision. The provision of reasons for the decision will assist people in deciding whether or not they wish to apply to the SSAT for review of the decision. Subsection 83(5) provides that a contravention of subsection 83(4), for example, if the Registrar fails to send a notice, does not affect the validity of the decision. Subsection 83(6) provides that if an application made under subsection 82(1) is granted, the person who made the application is taken to have duly lodged the objection to which the application relates.

Division 4 - Grounds of objection

New section 84 provides that the objection must state fully and in detail the grounds relied on.

New section 85 includes a table which sets out the type of decisions against which objections may be lodged, and the person or persons to whom the Registrar must serve a copy of the grounds of the objection.

New section 86 provides that the other party may oppose or support the objection, by lodging with the Registrar a written notice, setting out fully and in detail the ground relied on. Such written notice must be lodged within 28 days after service on the person of the grounds of the objection.

Division 5 - Consideration of objections

New section 87 deals with consideration of objections by the Registrar. Subsection 87(1) provides that if an objection is lodged with the Registrar, the Registrar must consider the objection and any notice lodged with the Registrar under section 86, and within 60 days after the objection is lodged, either disallow the objection, or allow it in whole or in part. The process for objections under the Child Support Registration and Collection Act is varied as the Registrar is no longer deemed to have made a decision to disallow the objection if the 60 days passes without the decision being made. Subsection 87(2) provides that the Registrar must serve notice in writing of the decision on the person who lodged the objection, and each other person who was entitled to be served a copy of the objection under section 85. Subsection 89(3) provides that the notice must include, or be accompanied by, the reasons for the decision and a statement to the effect that if a person is aggrieved by a decision on the objection, if the decision objected too was a decision by the Registrar that an application for a departure from the formula was too complex (that is, a decision under either section 98E or 98R), the person may apply to a court, or otherwise, apply to the SSAT, for review of the decision. The provision of reasons for the decision will assist in deciding whether or not they wish to apply to the SSAT or a court for review of the decision. Subsection 87(4) provides that a contravention of subsection 87(3), for example, if the notice does not set out that a person may apply to the SSAT for review of the decision, does not affect the validity of the decision.

Part VIIA - SSAT review of certain decisions

Division 1 - Preliminary

Section 87A is a simplified outline of Part VIIA.

New section 88 sets out that the objective of the SSAT is to provide a mechanism of review that is fair, just, economical, informal and quick.

Division 2 - Applications for review

Subdivision A - Applications for review

New section 89 deals with applications for review. Subsection 89(1) provides that a person may apply to the SSAT for review of a decision if the decision, and the person, is set out in the table included in subsection 89(1). This table includes a decision on an application for an extension of time under section 83, and a decision under subsection 87(1) on an objection to a decision. Subsection 92(2) provides that a person may not apply to the SSAT in relation to decisions by the Registrar that the matter was too complex for him or her to deal with administratively (that is, decisions under sections 98E or 98R). A note following subsection 89(2) explains that in that case, the person may apply to court for a departure order.

Subdivision B - Time limits on applications for review

New section 90 sets out time limits on applications for review and provides that a person must apply to the SSAT for review within 28 days after being served with notice under subsection 83(3) or 87(2).

New section 91 deals with applications for extension of time. Subsection 91(1) provides that the period for applying for review has ended, a person may make an application asking the SSAT Executive Director to consider the application for review despite the ending of the period. Subsection 91(2) provides that the extension application must state the reasons for the person's failure to apply for the review within the period required by section 90.

New section 92 deals with consideration of application for extension of time for lodging objections. Subsection 92(1) provides that if a person applies to the SSAT under section 91, the SSAT Executive Director must consider the extension application, and within 60 days, either grant or refuse the extension application, and if it is granted, deal with the application for review. However, the consideration of the application for review does not have to take place within 60 days of the application for extension of time being lodged.

Subsection 92(2) is a deeming provision and provides that if the SSAT Executive Director does not make a decision within 60 days, he or she is taken to have refused the extension application.

Subsection 92(3) provides that the SSAT Executive Director must give written notice of the decision granting or refusing the extension application to the person who made that application. Subsection 92(4) provides that if the SSAT Executive Director refuses the extension application, the notice under subsection 92(3) must include, or be accompanied by, a statement to the effect that the person may apply to the AAT for review of the decision, and may request a statement of reasons under section 28 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), unless he or she has already received a document which sets out such reasons.

Subsection 95(5) provides that a contravention of subsection 92(4), for example, if a notice does not set out that a person may apply to the AAT for review of a decision, does not affect the validity of the decision.

Subsection 92(6) provides that if an extension of time application under section 91 is granted, the person who made the application is taken to have duly made the application for review under this Part to which the extension application relates.

Subsection 92(7) provides that a person whose application decision made been refused by the SSAT Executive Director may apply to the AAT for review of the decision. Subsection 92(8) provides that decision in subsection 92(7) has the same meaning as in the AAT Act.

New section 93 provides that the procedures on receiving application for review are not required to be undertaken until the review of the extension application is completed. That is, subsections 95(2) to (6) and section 96 are taken not to apply in relation to the application for review unless and until a decision of the SSAT Executive Director, the AAT or a court decides that the extension application is to be granted by the SSAT Executive Director. In that case, the notice requirements under subsection 95(2) apply as if the application for review for SSAT review was made on the day on which the decision in relation to the extension application was made.

Subdivision C - Application procedures

New section 94 deals with application procedures for review by the SSAT. Subsection 94(1) provides that a person's options for applying to the SSAT for review under Part VIIA are broad, and include sending or delivering a written application to an office of the SSAT, the Department, the Commonwealth Services Delivery Agency, or the Department administering the Commonwealth Services Delivery Agency Act 1997 . This means that applications can be made to the Child Support Agency and Centrelink, as well as to other offices. Paragraphs 94(1)(b) and (c) provides that applications can also be made orally, either in person or by telephone to the SSAT. Subsection 94(2) provides that if a person makes an oral application in accordance with paragraphs 94(1)(b) and (c), then the person receiving the oral application must make a written record of the details and note on the record the day on which the oral application was made. Subsection 94(3) provides that the written record of an oral application has effect under Part VIIA as if the written record were a written application made on the day on which the oral application was made. Subsection 94(4) provides that an application may (but is not required to) include a statement of the reasons for seeking a review of the decision.

New section 95 deals with procedures on receiving applications for review.

Subsection 95(1) provides that, where an application for review is sent to an office of the Department or another agency, the Secretary or the CEO is responsible for ensuring that it is sent to the SSAT as soon as practicable but in any case no later than seven days after the Department or Agency received it.

Subsection 95(2) provides that the SSAT Executive Director must give the applicant, the Registrar and any other party written notice that an application has been received. A note following subsection 95(2) explains that the parties to the review are set out in section 101.

Subsection 95(3) requires the Registrar to provide the SSAT with a statement about the decision under review. The statement must set out the findings of fact, refer to the evidence and give the reasons for the decision. The Registrar is also required to provide the SSAT Executive Director with all documents relevant to the decision under review. These requirements have to be complied with within 28 days of the Registrar receiving a notice of the application for review. A note following subsection 95(3) explains that the Registrar must also send copies of the statement and documents to each party (see section 96).

Subsection 95(4) provides that, where the SSAT Executive Director asks the Registrar to send the statement and documents earlier than the date specified in subsection 95(3), the Registrar must take reasonable steps to comply with this request. The SSAT Executive Director might, for example, issue a request under this subsection in cases in which financial hardship would be likely to occur, pending the determination of the appeal.

Subsection 95(5) provides for the situation where relevant documents come into the Registrar's possession after the statement has been prepared and sent, with the relevant documents, to the SSAT Executive Director. The Registrar is required to send a copy of the later documents to the SSAT Executive Director as soon as practicable after receiving them.

Subsection 95(6) provides that if the Registrar must provide the SSAT with a document under this section, if the SSAT Executive Director requests a specified number of copies, the Registrar must provide that number of copies, or otherwise, two copies. This requirement is a new addition to the SSAT's procedures, and does not apply in relation to social security and family assistance matters before the SSAT.

Section 96 provides that parties are to be given statements about the decisions under review. Subsection 96(1) requires the Registrar to give, within 28 days after receiving the notice, each party to the review (other than the Registrar) a copy of the Registrar's statement of reasons, and documents relevant to the decision. A note following subsection 96(1) explains that the parties to the review are set out in section 101. If the Registrar would prefer not to have to provide a document or part of document that is relevant to the review to a party, such as a medical report or details relating to new partners of a party, to the other party for privacy reasons, the Registrar may apply to the SSAT for a direction under section 97 within the 28 day timeframe otherwise allowed for the provision of the documents. The application for a direction must be served on all the parties. If the SSAT makes the direction that the document or part of document need not be provided to the party, the Registrar need not provide it under subsection 96(1).

Subsection 96(2) enables the SSAT Executive Director to order the person receiving the above copy not to disclose any information from the statement or any information other than as specified in the order.

Subsection 96(3) provides that a person commits an offence if the SSAT Executive Director gives a direction to the person under subsection 96(2) and the person contravenes the direction. A penalty of imprisonment for two years applies for a failure to comply with the order.

New section 97 deals with when a document, or part of a document, is not required to be sent. Subsection 97(1) provides that subject to section 98, the Registrar is not required, under paragraph 95(3)(b) or subsection 93(5), to send a document, or part of a document, that is relevant to a review if:

(a)

for a document or a part of a document that is required under paragraph 95(3)(b)-within 28 days after receiving the relevant notice under subsection 95(2); or

(b)

for a document or a part of a document that is required under subsection 95(5)-as soon as practicable;

the Registrar:

(c)

applies to the SSAT Executive Director for a direction under section 98 in relation to the document or the part of the document; and

(d)

sends to the SSAT two copies of the document or the part of the document, together with the application for the direction; and

(e)

gives a copy of the application for the direction to each party to the application for review.

Subsection 97(2) provides subsection 97(1) does not affect the obligation of the Registrar to comply with paragraph 95(3)(b) or subsection 93(5) in relation to any document or part of a document to which subsection 97(1) does not apply.

New section 98 deals with directions prohibiting or restricting disclosure of documents. Subsection 98(1) provides that if, after considering an application by the Registrar under section 97 for a direction in respect of a document or a part of a document, the SSAT Executive Director directs the Registrar to send the document or the part of the document under subsection 95(3) or (5), the Registrar must do so.

Subsection 98(2) provides that the SSAT Executive Director may give directions (whether on application by the Registrar under section 97 or on his or her initiative) prohibiting or restricting the disclosure to some or all of the parties to a review of the contents of a document or statement referred to in subsection 95(3) or (5) that relates to the review. The SSAT Executive Director may do this if he or she is satisfied that it is desirable to do so because of the confidential nature of the document or statement, or for any other reason.

Subdivision D - Effect of variations of original decisions on applications

Section 99 deals with variations of decisions before reviews completed. Subsection 99(1) provides that if the Registrar varies a decision:

(a)

after an application has been made to the SSAT under this Part for review of the decision; but

(b)

before the determination of the review;

the application for review is to be treated as if it were an application for review of the decision as varied.

Subsection 99(2) provides that if the Registrar sets a decision aside and substitutes a new decision:

(a)

after an application has been made to the SSAT for review of the original decision; but

(b)

before the determination of the review;

the application for review is to be treated as if it were an application for review of the new decision.

Subsection 99(3) provides that if:

(a)

a person applies to the SSAT for review of a decision; and

(b)

before the determination of the review, the Registrar varies the decision or sets it aside and substitutes a new decision;

the person may either:

(c)

proceed with the application for review of the decision as varied or the new decision, as the case may be; or

(d)

apply to the SSAT Executive Director to have the application dismissed under section 100.

Subdivision E - Dismissal of applications

Section 99A provides that Subdivision E does not apply in relation to the Registrar.

Section 100 deals with dismissal of applications. Subsection 100(1) sets out the situations in which the SSAT Executive Director may, on the application of a party or on his or her own initiative, dismiss an application for review. These situations are:

(a)

the decision is not reviewable under this Part; or

(b)

the application is frivolous or vexatious; or

(c)

all of the parties consent; or

(d)

the SSAT Executive Director is satisfied:

(i)

after having communicated with each party; or

(ii)

after having made reasonable attempts to communicate with each party and having failed to do so;

(iii)

or a combination of both, that none of the parties intend to proceed with the application; or

(e)

all of the parties fail to attend the hearing; or

(f)

all of the parties have been removed from the proceeding under subsection 101(5).

(a)

The requirement in paragraph 100(1)(c) for all the parties to consent to the dismissal means that a specific withdrawal provision is not required.

The requirement in paragraph 100(1)(c) that the SSAT Executive Director can only dismiss the application, if none of the other paragraphs apply, if all the parties consent, means that there is no need for a provision which allows the parties to withdraw their application.

Subsection 100(2) provides that the SSAT Executive Director may dismiss an application because it is frivolous and vexatious only if:

(a)

one of the following applies:

(i)

the SSAT Executive Director has received and considered submissions from the applicant;

(ii)

the SSAT Executive Director has otherwise communicated with the applicant in relation to the grounds of the application;

(iii)

the SSAT Executive Director has made reasonable attempts to communicate with the applicant in relation to the grounds of the application and has failed to do so; and

(b)

all of the parties (other than the applicant) consent to the dismissal.

The purpose of subsection 100(2) is to ensure that people are given a right to be heard, and that a matter is not dismissed without the SSAT considering the matter before deciding that it is vexatious or frivolous. In addition to dismissing an application, the SSAT Executive Director also has the power to remove parties from the review (see section 101).

Division 3 - Parties to reviews

Section 102 sets out the parties to a review by the SSAT. Subsection 101(1) provides that the parties are the applicant, the Registrar, any other person who was entitled to apply for review of the decision under section 92 (that is, a person who applied for an extension of time, a person who objected to an original decision under section 80, or a person who was entitled to be served a copy of the grounds under section 85), and any other person who has been made a party to the review under subsection 101(4).

Subsection 101(2) provides that the any person whose interests are affected by the decision may apply in writing to the SSAT Executive Director to be made a party to the review.

Subsection 101(3) limits subsection 101(2). Paragraph 101(3)(a) provides that a person may not apply to be made a party to the review if he or she is a child of the applicant, of any other person who was entitled to apply for review, or of any person who made been made a party to the review. However, paragraph 101(3)(a) does not exclude adult children of a party to a review. Paragraph 101(3)(b) provides that if a party referred to in paragraph 101(1)(a), (c) or (d) is an eligible carer, but not a parent the person, they may not apply. That is, children who are being cared for by one of the parties to the child support assessment, despite not being that party's biological child, may not apply to be joined as parties to the review.

This amendment reflects a position that children under the age of 18 should generally not become involved in reviews of child support assessments applying to them, despite the fact they will be a person whose interests are affected by the decision. This is to protect such young people from being pressured to support a particular parent's position for child support purposes, which would be damaging to the child's continuing relationship with both their parents or carers.

Subsection 101(4) provides that the SSAT Executive Director may order that a person who has applied under subsection 101(2) may be made a party to a review.

Subsection 101(5) gives the SSAT Executive Director the power to remove parties to a review. The SSAT Executive Director may do this if:

(a)

the party consents; or

(b)

the SSAT Executive Director is satisfied, having communicated with the party, and having made reasonable attempts to communicate with the party and having failed to do so, that the party does not intend to participate in or proceed with the review; or

(c)

the party fails to comply with a direction or order of the SSAT given in relation to the review; or

(d)

the party fails to attend the hearing

Section 102 deals with notice of application to persons affected by a decision. Subsection 102(1) provides that reasonable steps must be taken by the Executive Director to give written notice of the application to another person whose interests are, in the Executive Director's opinion, affected by the decision.

Subsection 102(2) limits subsection 102(1). Paragraph 102(2)(a) provides that a person may not apply to be made a party to the review if he or she is a child of the applicant, of any other person who was entitled to apply for review, or of any person who made been made a party to the review. Paragraph 102(2)(b) provides that if a party referred to in paragraph 101(1)(a), (c) or (d) is an eligible carer, but not a parent the person, they may not apply. That is, children who are being cared for by one of the parties to the child support assessment, despite not being that party's biological child, may not be given notice of the review. For further discussion of this issue, see the comments made in relation to section 101 above.

Subsection 102(3) requires the notice under subsection 102(1), which may be given at any time before the review is determined, to be in writing, and also to set out the person's right to be joined as a party under section 101. Under subsection 102(4), each party is to be given a copy of the notice.

Division 3A - Prehearing conferences

Section 103 deals with pre-hearing conferences. Subsection 103(1) provides that the SSAT Executive Director may convene one or more pre-hearing conferences if he or she considers that it would assist in the conduct and consideration of the review to do so. This subsection is broadly drafted to allow the SSAT to use pre-hearing conferences to explore the issues about which the parties are in dispute, and to narrow the ground between the parties. Subsection 103(2) provides that at a conference, the SSAT may fix a time for the hearing, and give directions about the timing of making submissions or bringing evidence. A note following section 103 provides that section 103W (which deals with the SSAT's powers if the parties reach agreement) applies if the parties reach an agreement during the pre-hearing conference.

Division 4 - Hearings

Subdivision A - Arrangement for hearings

Section 103A deals with arrangements for hearings. Subsection 103A(1) provides that the SSAT Executive Director must fix a day, time and place for the hearing of a review of a decision if:

(a)

an application is made to the SSAT for review of the decision; and

(b)

the parties to the review do not reach an agreement before a hearing of the review is to begin; and

(c)

the SSAT Executive Director has not already done so at a pre-hearing conference.

Subsection 103A(2) provides that the SSAT Executive Director must give the applicant and any other parties to the review written notice of the day, time and place fixed for the hearing of the application. Subsection 103A(3) provides that the notice given under subsection 103A(2) must be given a reasonable time before the day fixed for the hearing. Subsection 103A(3) provides that the notice under subsection 103(2) must be given a reasonable time before the day fixed for the hearing.

Subdivision B - Submissions from parties other than the Registrar

Section 103B provides that Subdivision B does not apply in relation to the Registrar (Subdivision C deals with submissions by the Registrar).

Section 103C deals with submissions from the parties. Subsection 103C(1) provides that a party to a review may make oral, written, or both oral and written submissions. A note following subsection 103C(1) explains that the SSAT Executive Director may direct that a hearing be conducted without oral submissions from the parties (see section 103D). Subsection 103C(2) provides that another person may make submissions on a party's behalf. Subsection 103C(3) provides that the SSAT Executive Director may determine the means by which submissions are to be made, for example, electronically or by telephone. Subsection 103C(4) provides that the SSAT Executive Director may make a determination under subsection 103C(3) in relation to an application if:

(a)

the application is urgent;

(b)

the party lives in a remote area and travelling to the hearing would incur unreasonable expenses;

(c)

the party is unable to attend the hearing because of illness or infirmity;

(d)

the party has failed to attend the hearing and has not indicated that he or she intends to attend the hearing.

However, these specific situations do not limit the SSAT Executive Director's power to make a determination under section 103C.

Subsection 103C(5) provides that if a party is not proficient in English, the SSAT Executive Director may give directions as to the use of an interpreter.

Section 103D provides, in subsection 103D(1), that the SSAT Executive Director may direct that a hearing be conducted without oral submissions from the parties if the SSAT Executive Director considers that the review hearing could be determined fairly on the basis of written submissions by the parties and all parties to the review consent to the hearing being conducted without oral submissions.

Subsection 103D(2) provides that if the SSAT Executive Director directs that the hearing is to be conducted on written submissions only, he or she must give the parties a written notice informing them of the direction, inviting them to make written submissions, and informing them to where, and by when, submissions must be made. The SSAT Executive Director must also give a copy of the notice to the Registrar.

Subsection 103D(3) provides that the notice must give a reasonable time for written submissions to be made.

Subsection 103D(4) provides that despite any direction under subsection 103D(1), the SSAT may order, if it thinks it necessary after considering the written submissions made by the parties, make an order permitting the parties to make oral submissions to the SSAT at the hearing of the review.

Section 103E deals with hearings without oral submissions from the parties. Subsection 103E(1) provides that if a party has informed the SSAT Executive Director that he or she does not intend to make oral submissions, the SSAT may proceed to hear the application without oral submissions from the party.

Subsection 103E(2) provides that if the SSAT Executive Director has determined that oral submissions are to be made by telephone or other electronic means, and on the day of the hearing, the presiding member has been unable to contact the party or his or her representative, the SSAT Executive Director may authorise the SSAT to proceed without oral submissions from the party.

Subsection 103E(3) provides that the SSAT Executive Director may authorise the SSAT to proceed without oral submissions from a party where there has been no determination that submissions from that party may be made by telephone or other electronic communications equipment and the party does not attend the hearing.

Subsection 103E(4) provides that the SSAT may proceed to hear the application where the SSAT Executive Director has given an authorisation under either subsection 103E(2) or (3). If the hearing for the review has not been completed, subsection 103E(5) allows the SSAT Executive Director to revoke an earlier authorisation made under subsection 103E(2) or (3). This may arise, for example, where contact is made with a party after the authorisation was made.

Subdivision C - Submissions from the Registrar

Section 103F deals with submissions from the Registrar. The ways in which the Registrar may make submissions are limited because review by the SSAT is, amongst other things, required to be informal, should, subject to the legislation, focus on the views of the people who are parties to the child support matter. The Registrar's methods of giving evidence are also limited to address any perceptions of imbalance in the resources available to the Registrar to argue their position, compared to that of the parents. The SSAT's role in child support matters is also different to its role in social security and family assistance matters, because in child support matters, the dispute invariably involves two private parties as well as the Registrar. In social security and family assistance matters, the dispute is generally between a person and the Secretary. The ways in which the Registrar may make submissions is also limited because the Registrar is a party to the proceedings before the SSAT, and thus he or she cannot intervene under section 103F.

Subsection 103F(1) provides that the Registrar may make written submissions to the SSAT. Subsection 103F(2) provides that the Registrar may request in writing the SSAT's permission to make oral, or both written and oral, submissions. The request must explain how such submissions would assist the SSAT. Subsection 103F(3) provides that the SSAT Executive Director may, by writing, grant the request, if in his or her opinion, having regard to the SSAT's objective of providing review that is fair, just, economical, informal and quick, such submissions would assist the SSAT. Subsection 103F(4) provides that the SSAT Executive Director may order the Registrar to make oral submissions to the SSAT, or both oral and written submissions to the SSAT, if, in the opinion of the SSAT Executive Director having regard to the objective laid down by section 88, such submissions would assist the SSAT.

Subdivision D - Other evidence provisions

Section 103G provides that the SSAT may take evidence on oath or affirmation for the purposes of a review of a decision.

Section 103H provides that children of parties are not to give evidence. Essentially, a child may not give evidence if one of the child's parents, or (if applicable) the child's non-parent carer, is a party to the review. This provision reflects a position that children should generally not become involved in reviews of child support assessments applying to them, despite the fact they will be a person whose interests are affected by the decision. This is to protect children from being pressured to support a particular parent's or carer's position for child support purposes, which would be damaging to the child's continuing relationship with both their parents and/or their carers.

Section 103J gives the SSAT Executive Director broad powers to ask the Registrar to provide any further information or a document that is in the Registrar's possession that is relevant to the review. Subsection 103J provides that the Registrar must comply as soon as practicable, and in any event within 14 days. If the request is for a document, the Registrar must provide the SSAT with the number of copies requested, or otherwise, two copies of the document.

Section 103K deals with the SSAT's power to obtain information. Subsection 103K(1) provides that the SSAT may, if it is reasonably necessary for the purposes of the review, by written notice, require a person:

•

to give information to the SSAT;

•

attend before the SSAT; or

•

produce any documents in his or her custody or control to the SSAT.

Such notices must give a reasonable time, of at least seven days, to comply, and if necessary, give a reasonable manner of providing information, or a reasonable place for attending or providing documents.

Subsection 103K(2) creates an offence of failing to comply with a notice given by the SSAT Executive Director. The penalty is imprisonment for six months. Subsection 103K(3) provides that the offence in subsection 103L(2) is not made out if complying with the notice might tend to incriminate the person. A note following subsection 103K(3) states that a defendant bears an evidential burden in relation to the matters in subsection 103K(3). See further discussion under section 110X below about this reversal of the onus of proof.

Subsection 103K(4) provides that a person who is required to attend under section 103K is allowed such expenses as are prescribed in the regulations for the purposes of subsection 120(2). This covers such things as transport costs, and accommodation costs if the person is required to be away from home for one or more nights.

Section 103L provides that the SSAT may require the Registrar to obtain information. Subsection 103L(1) provides that if the SSAT Executive Director is satisfied that a person has information that is relevant to a review, or has custody or control of a document that is relevant to a review, the SSAT Executive Director may ask the Registrar to exercise the Registrar's powers under section 161 of the Child Support Assessment Act or section 120 of the Child Support Registration and Collection Act. In accordance with section 103T, the SSAT itself cannot exercise the Registrar's powers under those sections. A note following subsection 103L(1) explains that a person who fails to comply with a notice given under section 161 of the Assessment Act or section 120 of this Act commits an offence under that section. Subsection 103L(2) provides that the Registrar must comply with a request under subsection 103L(1) as soon as possible, and in any event, within seven days of the request being made.

Subdivision E - Hearing procedure

Section 103M sets out how the SSAT will determine which member is to preside at the hearing of the review.

Section 103N provides that the SSAT in reviewing a decision under this Part is not bound by the legal technicalities, legal forms or rules of evidence. Instead, the SSAT is to act as speedily as a proper consideration of the review allows, and is to have regard to the SSAT's objective of providing review that is fair, just, economical, informal and quick. The SSAT may inform itself on any matter relevant to a review that it considers appropriate. A note following section 103N explains that the SSAT Executive Director may give directions as to the procedure to be followed in connection with reviews (see section 103ZA).

Given the sensitive nature of child support proceedings, it is important that private information is treated confidentially and not disclosed. The following sections, 103P and 103Q, provide mechanisms to protect parties' information.

Section 103P provides that the hearing of a review must be in private. The SSAT Executive Director may give directions as to the persons who may be present at any hearing, having regard to the wishes of the party, and the need to protect their privacy.

Section 103Q allows the SSAT Executive Director to impose restrictions on the disclosure of information obtaining during a hearing of a child support matter. The SSAT Executive Director may make an order directing a person present not to disclose any information obtained during the hearing, or not to disclose any information obtained except for the purposes of the hearing, and in the circumstances specified in the order. A contravention of such an order is an offence, and is punishable by imprisonment for two years.

Section 103R allows the SSAT to adjourn hearings. However, the SSAT may refuse to adjourn proceedings if the hearing has already been adjourned on two or more occasions, or if the SSAT is satisfied that to grant an adjournment would be inconsistent with the SSAT's objective of providing review that is fair, just, economical, informal and quick.

Division 5 - Decisions on review

Subdivision A - SSAT review powers

Section 103S provides that the SSAT must affirm, vary or set aside decisions. The SSAT may also substitute a new decision or send the matter back to the Registrar for reconsideration in accordance with any directions or recommendations of the SSAT. However, the SSAT cannot make a decision that the Registrar himself or herself was not able to make (see section 103T below).

Section 103T sets out the powers of the SSAT for the purpose of reviews. It provides that the SSAT may, for the purpose of reviewing a decision under this Part, exercise all the powers and discretions that are conferred by the Child Support Assessment Act and the Child Support Registration and Collection Act on the Registrar, except if the exercise of those powers by the SSAT is limited by regulation. If the Registrar's power is limited in some way, then the SSAT's power is similarly limited. For example, the SSAT may not make a determination that the formula is departed from such that an amount less than the minimum child support assessment is payable, in circumstances in which the Registrar could not make such a decision. Subsection 103T(3) provides that the regulations may specify provisions of the Child Support Registration and Collection Act and the Child Support Assessment Act to which subsection 103T(1) does not apply. This restriction is included because it is not appropriate for the SSAT to exercise certain of the Registrar's powers, such as the Registrar's power of delegation, and the form of application for administrative assessment of child support.

Section 103U provides that a review by the SSAT is to be decided according to the opinion of the majority, except if the opinions of the members are equally divided. In that case, the question is to be decided according to the opinion of the member presiding.

Section 103V sets out the date of effect of SSAT decisions. It applies if the SSAT varies a decision, or sets aside a decision and substitutes a new decision. Subsection 103V(2) provides that the decision as varied, or the new decision, has effect, or if taken to have had effect on a day specified in the SSAT's decision, or the day on which the decision under review has or had effect.

Subdivision B - Consent orders

Section 103W sets out the powers of the SSAT if the parties reach agreement, including at a pre-hearing conference under section 103. Paragraph 103W(1)(a) deals with the situation where, if at any stage of the review proceedings, the parties, apart from the Registrar, agree to the terms of a decision of the SSAT that would be acceptable to the parties. Paragraph 103W(1)(b) provides that if the terms of the agreement must be put in writing, signed by or on behalf of the parties and lodged with the SSAT, and, in accordance with paragraph 103W(1)(c), the SSAT is satisfied that the decision would be within the SSAT powers, then the SSAT must act in accordance with either subsection 103W(2) or (3). A note following subsection 103W(1) explains that that the SSAT cannot make a decision that the Registrar could not have made (see section 103T).

Subsection 103W(2) provides that if an agreement is an agreement as to the terms of a decision of the SSAT in the proceeding, the SSAT may make a decision in accordance with those terms without holding or completing a hearing. Subsection 103W(3) provides that if the agreement relates to a part of the proceeding, or a matter arising out of the proceeding, the SSAT may give effect to the agreement's terms without dealing at the hearing with that matter.

Subdivision C - Notification and publication of decisions

Section 103X deals with the procedure following a decision by the SSAT. Subsection 103X(1) provides that within 14 days after making the decision, the SSAT must give the parties a written notice setting out the decision, and the fact that an appeal may be made to a court on a question of law. The SSAT must also return any documents to the Registrar which the Registrar provided, and give to the Registrar a copy of any document on which the findings on any material of fact are based. However, subsection 103X(2) provides that a failure to comply with subparagraph 103X(1)(a)(ii), that is, a failure to inform a party that he or she may apply to a court on a question of law, does not affect the validity of the decision.

Subsection 103X(3) provides that within 14 days after making the decision, the SSAT must either give reasons for the decision orally, and explain that the parties may request written reasons under paragraph 103X(3)(b) within 14 days after the notice is given under paragraph 103Y(1)(a), or provide written reasons. Paragraph 103X(3)(b) provides that written reasons must set out the reasons for the decision, the findings on any material questions of fact and refer to the material or evidence on which the findings of fact are based.

Subsection 103X(4) provides that if the SSAT gives its reasons orally, within 14 days after those oral reasons were given, the party may request a written notice. Subsection 103X(5) provides that the SSAT must comply with a request under subsection 103X(4) within 14 days.

Section 103Y deals with correction of errors in decisions or statement of reasons. Subsection 103Y(1) provides that if the presiding member of the SSAT as constituted for the purposes of the review is satisfied that there is an obvious error in the text of the decision, or the written statement of reasons, the presiding member alter the text of the decision or statement. Subsection 103Y(2) provides that the altered text is taken to be the SSAT's decision or the reasons for the decision. Subsection 103Y(3) gives examples of obvious errors, including clerical or typographical errors, or inconsistencies between the decision and the statement.

Subdivision C - Costs

Section 103Z deals with the costs of review. It provides that in general, a party to a review must bear his or her own costs. However, the SSAT may determine that the Commonwealth is to pay any reasonable travel or accommodation costs specified in the determination. Also, if the SSAT arranges for the provision of a medical service in relation to a party to the review, the SSAT may determine that the Commonwealth is to pay the costs of the provision of the evidence. Subsection 103Z(4) provides that if the SSAT makes a determination under subsection 103Z(2) or (3), the costs are payable by the Commonwealth.

Division 6 - Other provisions

Section 103ZA deals with directions as to procedures for reviews. Subsection 103ZA(1) provides that the SSAT Executive Director may give both general directions as to the procedure to be followed by the SSAT, and directions in relation to a particular review. Such directions must not be inconsistent with the Child Support Assessment Act or the Child Support Registration and Collection Act (see subsection 103ZA(2)), and may be given before or after the hearing of a particular review has commenced (see subsection 103ZA(3)). The presiding member of the SSAT as constituted for a particular review may also give directions for that review (see subsection 103ZA(4)). As with directions given by the SSAT Executive Director, such directions must not be inconsistent with the Child Support Assessment Act or the Child Support Registration and Collection Act, but in addition must not be inconsistent with any directions given under subsection 103ZA(1) (see subsection 103ZA(5)). Directions may be given before or after the hearing of a particular review has commenced (see subsection 103ZA(6)). Directions given under section 103ZA must be consistent with the SSAT's objective of providing review that is fair, just, economical, informal and quick (see subsection 103ZA(7)). A general direction made under paragraph 103ZA(1)(a) is a legislative instrument under the Legislative Instruments Act 2003 (see subsection 103ZA(8)). A direction made under paragraph 103ZA(1)(b) or subsection 103ZA(4) is not a legislative instrument (see subsection 103ZA(9)). This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

Item 70 repeals and substitutes the heading of Part VIII:

Part VIII - Court review of certain decisions

Item 71 inserts before section 104 various new sections dealing with court review of certain decisions.

Division 1 - Preliminary

Section 103ZB sets out a simplified outline of Part VIII.

Division 2 - Jurisdiction of courts

Section 103ZC sets out a simplified outline of Division 2 of Part VIII.

Item 72 adds at the end of Part VIII a new Division 3:

Division 3 - Appeals and references of questions of law from SSAT to courts

Subdivision A - Preliminary

Section 110A sets out a simplified outline of Division 3 of Part VIII.

Subdivision B - Appeals from the SSAT

Section 110B deals with appeals from decisions of the SSAT. It provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the SSAT in that proceeding. This is consistent with how matters are currently appealed from the AAT to a court. The SSAT and AAT are tribunals which consider the merits of a case, whereas a court usually only considers matters which raise a question of law.

Section 110C deals with time limits for instituting appeals. Subsection 110C(1) provides that an appeal to a court must be instituted within the time prescribed by the applicable Rules of Court, or within such further time as is allowed under the applicable Rules of Court, and in such manner as prescribed by the applicable Rules of Court. Subsection 110C(2), without limiting subparagraph 110C(1)(a)(ii), provides that further time may be allowed if the SSAT initially gave its decision orally, and later gave a written statement of reasons, and the written statement contains reasons that were not mentioned in the oral statement.

Section 110D provides that the parties to the appeal are the people who were the parties to the proceedings before the SSAT when the SSAT made the relevant decision. This section is expressed in this way to provide clarity in who are the parties to the appeal, because parties may have been joined to, or dismissed from, the SSAT proceedings, at various points.

Section 110E provides that the jurisdiction of a court to hear and determine appeals from SSAT proceedings may be exercised by the court constituted as a Full Court or by a single Judge.

Section 110F deals with the powers of courts. Subsection 110F provides that the court must hear and determine an appeal and may make such orders as it thinks appropriate. Subsection 110F(2), without limiting subsection 110F(1), provides that the orders a court may make include affirming or setting aside the SSAT's decision, remitting the case to the SSAT to be heard and decided again, either with or without further evidence, in accordance with the court's directions. Paragraph 110F(3)(a) provides that if a matter is remitted to the SSAT, the SSAT does not need to be constituted by the same person or persons who originally made the decision. Paragraph 110F(3)(b) provides that whether or not the SSAT is reconstituted for the hearing, the SSAT may have regard to any record of proceedings before the SSAT prior to the appeal, so long as doing so is not inconsistent with the court's directions.

Section 110G provides that the courts may make findings of fact. Paragraph 110G(1)(a) provides that the court may make findings of fact that are not inconsistent with the findings of fact made by the SSAT (other than findings made by the SSAT as the result of an error of law). Paragraph 110G(1)(b) sets out various matters to which the court must have regard if the court chooses to exercise its discretion to make findings of fact. Subsection 110G(2) provides that the court may have regard to the evidence given in the proceeding before the SSAT and receive further evidence. Subsection 110G(3) provides that this does not limit the court's power under paragraph 110F(2)(b) to make an order remitting the case to be heard and decided again by the SSAT.

Subdivision C - References of questions of law from SSAT

Section 110H deals with references of questions of law from the SSAT. Subsection 110H(1) provides that the SSAT may, on its own initiative, or at the request of a party, refer a question of law arising in a proceeding before it to a court for decision. Subsection 110H(2) provides that a question must not be referred without the SSAT Executive Director's agreement. Subsection 110H(3) provides that if a question has been referred to a court, the SSAT must not give a decision to which the question is relevant while the reference is pending, or proceed in a manner, or make a decision inconsistent with, the opinion of the court on the matter.

Section 110J provides that the jurisdiction of a court to hear and determine a question of law must be exercised by the court constituted as a Full Court or by a single Judge.

Subdivision D - Other provisions

Section 110K deals with the sending of documents to, and disclosure of documents by, the court. It provides that when an appeal is instituted in a court, or a question of law is referred to a court, the SSAT Executive Director must send to the court all the documents that were before the SSAT in relation to the proceeding to which the appeal or reference relates. At the conclusion of the proceeding, the court must return the documents to the SSAT.

Item 73 inserts after Part VIII a new Part VIIIA.

Part VIIIA - Other provisions relating to reviews of decisions

Division 1A - Preliminary

Section 110N sets out a simplified outline of Part VIIIA.

Division 1 - Effect of pending reconsiderations on assessments, registrations etc.

Subdivision A - Preliminary

Section 110P provides that Division 1 applies for the purposes of the Child Support Assessment Act and the Child Support Registration and Collection Act and that Division 4 is subject to section 111C (stay orders).

Section 110Q sets out a number of matters which are a reconsideration, for the purposes of the Child Support Registration and Collection Act. These matters are:

(a)

an objection to a decision under Part VII;

(b)

an application to the SSAT for review of that decision under Part VIIA;

(c)

an appeal to a court from that review under Division 3 of Part VIII;

(d)

an appeal to another court from that appeal under Division 2 of Part VIII and any subsequent appeals under that Division.

Subdivision B - Effect of pending reconsiderations

Section 110R provides that the institution of a reconsideration does not affect the operation of the decision, or the taking of action to implement the decision. For example, the SSAT may make a decision favourable to one party, which requires the Registrar to alter the Child Support Register. The fact that another party has appealed the matter to a court does not affect the Registrar's obligation to amend the Child Support Register. Section 110R has a very broad application, and is intended to ensure the continued operation of the child support system, despite any reconsiderations which may be pending.

Section 110S provides that the fact that reconsideration of registrable maintenance is pending does not interfere with, or affect, the registration of the liability, or the particulars entered in the Child Support Register in relation to the liability. Subsection 110S(2) provides that any amounts payable under such a liability, or payable by way of a penalty may be recovered as if no reconsideration were pending. Because it deals only with reconsideration of registrable maintenance liabilities, section 110S is narrower in its operation that section 110R.

Section 110T provides, in subsection 110T(1), that the fact that reconsideration of a decision is pending in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to a person. Subsection 110T(2) provides that any such assessment may be registered under the Child Support Assessment Act and any amounts may be recovered in relation to the assessment as if no reconsideration were pending. Because it deals only with reconsideration of a decision in relation to a person, for example, whether or not a person is a resident of Australia, section 110T is narrower in its operation than section 110R.

Section 110U provides that the fact that a reconsideration of a decision of the Registrar under section 64A of the Child Support Assessment Act does not, in the meantime, interfere with, or affect the decision. Subsection 110U(2) provides that amounts payable in relation to a decision may be recovered as if no appeal were pending. Because it deals only with reconsideration of a decision in relation to a penalty for underestimating taxable income and a supplementary amount, section 110X is narrower in its operation than section 110R.

Division 2 - Implementation of decisions

Section 110V provides that when the Registrar, the SSAT or a court makes a decision on a reconsideration, the Registrar must immediately take such action as is necessary to give effect to the decision.

Division 3 - Determining when decisions become final

Section 110W sets out how to determine when a decision becomes final.

Subsection 110W(1) provides that the SSAT's decision becomes final if an appeal could be made to a court (that is, an appeal could be made in relation to a question of law), but an appeal is not made within the period for doing so. The SSAT's decision becomes final at the end of the period for making an application to the court.

Subsection 110W(2) provides that the Full Court of the Family Court's decision becomes final if an application for special leave to appeal to the High Court may be made within the period of 30 days after the making of the decision, but an application is not made within that period. The Full Court's decision becomes final at the end of the period for making a special leave application.

Subsection 110W(3) provides that the decision of any other court becomes final if an application for leave to appeal may be made, but application is not made within the period for doing so. The court's decision becomes final at the end of the period for making the application for leave to appeal.

Division 4 - Restrictions on publication of review proceedings

Section 110X imposes restrictions on the publication of review proceedings. Subsection 110X(1) provides that a person commits an offence if a person publishes or disseminates an account of proceedings before the SSAT in relation to child support, and that account identifies a party to, or a person related to a party to, the proceedings, or a witness in the proceedings. This is punishable by imprisonment for 12 months. Subsection 110X(2) sets out what accounts are taken to identify a person. Subsection 110X(3) creates an offence of publishing identifying lists. It provides that a person commits an offence if he or she publishes or disseminates a list of proceedings before the SSAT in relation to child support. Subsection 110X(4) creates defences to the offences set out in subsections 110X(1) and (3). The defences are that the offences do not apply in relation to communications for:

(a)

court proceedings; or

(b)

disciplinary proceedings against a member of the legal profession; or

(c)

the granting of legal aid; or

(d)

publishing a notice or report in accordance with a court direction; or

(e)

publication by the SSAT of lists of proceedings that are to be dealt with by the SSAT;

(f)

publication for use by members of any profession for professional purposes, such as law reports; or

(g)

publication or dissemination of an account for the purposes of professional training, informing a person who is a party to the proceedings, the studies of a person who is a student; or

(h)

publication of accounts of proceedings, where those accounts have been approved by the court.

The defence elements discussed above in relation to sections 103K and 110X constitute a reversal of proof, which give to the defendant the onus of raising the particular matters in the defence, to resist the charge. In this case, the defendant has an evidential burden of proof so that the defendant bears the onus of pointing to, or adducing, something to raise the defence and the prosecution would bear the burden of disproving the defence beyond a reasonable doubt. This is justified because the matter would fall peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to prove than for the defendant to establish.

Subsection 110X(5) provides that offences against subsections 110X(1) or (3) are indictable offences, and subsection 110X(6) provides that they must not be commenced without the Director of Public Prosecution's written consent. Subsection 110X(7) sets out the definitions of a number of terms used in section 110X.

Item 74 repeals and substitutes subsection 116(1), and inserts new subsections 116(1), (1A) and (1B). The changes to subsection 116(1), and new subsections 116(1A) and (1B) ensure that the references to various proceedings correctly reflect the changes to where those proceedings will be located in the child support legislation. In addition, new subsection 116(1) is different to the current subsection 116(1) by providing that a document signed by the Registrar purporting to be a copy of an entry in the Registrar is prima facie evidence, rather than conclusive evidence of the matters set out in subsection 116(1). This change makes subsection 116(1) consistent with provisions in other Commonwealth legislation dealing with similar matters. .

Family Law Act

Item 75 amends the Family Law Act by inserting at the end of subsection 69B(2) the words 'or the Child Support (Registration and Collection) Act 1988'. This change ensures that subsection 69(1) of the Family Law Act, which provides that proceedings under Part VII of that Act must only be initiated in accordance with that Part, does not apply in relation to child support proceedings. This change is required because proceedings may now be initiated under the Child Support Registration and Collection Act, whereas under the current form of the child support law, they may only be initiated under the Child Support Assessment Act.

Social Security Administration Act

Item 76 amends the Social Security Administration Act. It omits, in clause 20 of Schedule 3, the words 'or the Employment Services Act 1994' and substitutes ', the Employment Services Act 1994 , the Child Support (Assessment) Act 1989 , or the Child Support (Registration and Collection Act 1988 )'. This change means that the SSAT Executive Director may, in writing, delegate to a member of the SSAT all or any of his or her powers and functions.

Part 2 - Application

Item 77 sets out the application provisions for review of decisions.

Decisions of the Registrar - internal review pending or not yet started at commencement

Subitem 77(1 ) provides that, subject to subitem 77(3 ), internal review under Part VII of the Child Support Registration and Collection Act applies to decisions of the Registrar made under the Child Support Registration and Collection Act, or the Child Support Assessment Act before or after the commencement of this item. A note following subitem 77(1 ) explains that Part VII of the Child Support Registration and Collection Act (as amended by this Schedule) also applies if a proceeding for internal review was pending under that Part or Part 6B of the Child Support Assessment Act immediately before the commencement of this item (see subitem 77(4 )).

Subitem 77(2 ) provides that review by the SSAT applies to a decision made by the Registrar under subsection 85(1) or 89(1) of the Child Support Registration and Collection Act after the commencement of this item, that is, after 1 January 2007.

Decisions of the Registrar - internal review completed before commencement

Subitem 77(3 ) deals with situations where a person objected, under Part 6 of the Child Support Assessment Act or Part VII of the Child Support Registration and Collection Act, to a decision of the Registrar (the original decision), and that objection was made, and the Registrar made a decision on that objection (the objection decision) before the commencement of this Part (that is, before 1 January 2007). An original decision could include, for example, a decision relating to the particulars of an assessment or the particulars of an entry in the Child Support Register. In those situations, the Child Support Assessment Act and the Child Support Registration and Collection Act apply in the form they took before the commencement of this Schedule. This applies both in relation to the original decision and the objection decision. In other words, the person has the right to appeal to the AAT, and directly to the courts, as they do presently. A proceeding in a court under Division 3 of Part 7 of the Child Support Assessment Act may be commenced after the commencement of this item if the Registrar made a decision on an objection to the relevant particulars of the relevant administrative assessment before the commencement of this item.

Pending proceedings - internal reviews

Subitem 77(4 ) provides that a proceeding before the Registrar that was, before 1 January 2007, pending under Part 6B of the Child Support Assessment Act, or Part VII of the Child Support Registration and Collection Act, is taken, on 1 January 2007, to be pending under Part VII of the Child Support Registration and Collection Act.

Subitem 77(5 ) provides that the Child Support Assessment Act and the Child Support Registration and Collection Act, as in force before the commencement of this item, continue to apply in relation to a decision made by the Registrar under:

(a)

subsection 98ZE(1) of the Child Support Assessment Act (that is, consideration of applications for extensions of time for lodging objections); or

(b)

subsection 88(1) or 100(1) of the Child Support Registration and Collection Act (that is, consideration of applications for extension of time).

The joint effect of subitems 77(4) and (5 ) is shown by the following example:

If the Registrar makes a decision under subsection 98ZE(1) of the Child Support Assessment Act before the commencement of this Schedule, the AAT can still review the decision (the result of subitem (5)), but if the AAT grants the extension, it will be an extension to bring an application under new Part VII of the Child Support Registration and Collection Act (the result of subitem (4)).

Pending proceedings - court and AAT reviews

Subitem 77(6 ) provides that the amendments of the Child Support Assessment Act and the Child Support Registration and Collection Act made by this Schedule do not affect any proceeding before, or appeal made to, a court or the AAT, or any order or declaration made by a court or the AAT in force immediately before the commencement of this item.

Subitem 77(7 ) provides that the amendments made to the Child Support Assessment Act by items 5, 9 and 10 do not apply in relation to a proceeding under Division 3 of Part 7 of the Child Support Assessment Act as in force immediately before the commencement of this item. Items 5, 9 and 10 replace references to the objections procedure and AAT review of certain decisions ( item 5 ), and appeals to the court against incorrect assessments ( items 9 and 10 ) with references to Part VIIA or Subdivision B of Part VIII of the Child Support Registration and Collection Act. It ensures that proceedings covered by subitem 77(6 ) can continue unaffected by the amendments in this Schedule. A proceeding under Division 3 of Part 7 of the Child Support Assessment Act may be commenced after the commencement of this item if the Registrar made a decision on an objection to the relevant particulars of the relevant administrative assessment before the commencement of this item (see subitem 77(3 ))

Item 78 sets out application and savings provisions in relation to notices. Subitems 78(1) and (2 ) provide that the amendments made by various items, which amend the Registrar's requirement to give notices, under both the Child Support Assessment Act, and the Child Support Registration and Collection Act, apply in relation to notices given after the commencement of this item. Subitem 78(3 ) provides that the amendments of the Child Support Assessment Act and the Child Support Registration and Collection Act do not affect the validity of a notice given by the Registrar under any provision of those Acts before the commencement of this item. Even though notices given before commencement will incorrectly refer to a right to apply to a court or the AAT for review, this will be dealt with administratively.

Item 79 sets out the application of section 110X of the Child Support Registration and Collection Act. It provides that section 110X, which imposes restrictions on the publication of review proceedings, and creates offences of publishing identifying accounts and publishing identifying lists, applies in relation to proceedings commenced under Part VIIA (review by the SSAT), or Division 3 of Part VIII (court review of certain decisions of the SSAT), of the Child Support Registration and Collection Act after the commencement of this item.

Item 80 makes specific provision for how these amendments are to apply in Western Australia in relation to exnuptial children. Under the Constitution, the Commonwealth child support legislation applies in the states in relation to exnuptial children only if the states either refer to the Commonwealth their power to make such laws, or adopt the relevant Commonwealth laws. All states have referred their power except Western Australia, which has chosen instead to adopt the child support legislation from time to time through a series of Acts.

Therefore, these amendments will apply in relation to exnuptial children in Western Australia only when the amendments have been adopted. Therefore, the application provisions discussed above are modified so that they generally apply in these cases to objection decisions made after the date of adoption, with matters in train at the date of adoption being treated in the same way as matters in train at 1 January 2007 for all other cases, as discussed above.

Item 80 does this by providing that the application arrangements in items 77 to 79 apply in relation to exnuptial children in Western Australia as if references in those items to the commencement of the items were references to the adoption of the amendments.

Until the adoption, parents of exnuptial children in Western Australia will continue to have the current access to court review of objection decisions.