House of Representatives

Explanatory Memorandum

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

Schedule 2 - Incorporation in primary legislation of matters dealt with by regulation

Summary

This Schedule moves into the primary child support legislation provisions currently contained in regulations relating to overseas maintenance arrangements (thus, honouring a commitment made by the government during passage of the enabling provisions for the regulations). The Schedule also makes minor or consequential amendments to the family law legislation.

Background

The Child Support Legislation Amendment Act 2000 amended the Child Support Assessment Act, the Child Support Registration and Collection Act and the Family Law Act 1975 (Family Law Act) to insert regulation-making provisions that would enable Australia to fulfil its international maintenance arrangements. Regulations were subsequently made to prescribe, in relation to countries, and parts of countries, with which Australia has maintenance enforcement arrangements, all matters relevant to the recognition and enforcement of child support and spousal maintenance liabilities. The regulations in question are:

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the Child Support (Assessment ) ( Overseas-related Maintenance Obligations) Regulations 2000 (Assessment Overseas Regulations);

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the Child Support (Registration and Collection ) ( Overseas-related Maintenance Obligations) Regulations 2000 (Registration and Collection Overseas Regulations); and

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certain provisions in the Family Law Regulations 1984 .

When the regulation-making provisions were inserted into the three pieces of primary legislation, they each included a specific provision that would allow the overseas-related regulations to be inconsistent with the principal legislation and to prevail to the extent of any such inconsistency. These specific provisions are subsection 163B(3) of the Child Support Assessment Act, subsection 124A(3) of the Child Support Registration and Collection Act and subsection 124A(3) of the Family Law Act.

This approach was taken to overcome the difficulty of drafting and passing primary legislation amendments within the timeframe necessary for the international arrangements. During passage, however, the government made a commitment that provisions in the forthcoming regulations that were inconsistent with the primary legislation would be brought into the legislation as soon as possible. This Schedule gives effect to that commitment.

Complementary regulation changes will follow enactment of this bill. These changes will mostly be to remove provisions that will now appear in the primary legislation, to avoid duplication and to ensure that the new provisions work correctly. However, there are some provisions (notably, administrative type matters, the list of reciprocating jurisdictions and specific references in some provisions to the current Australia-New Zealand Agreement) that are to be left in regulations for reasons such as similarity to other provisions already in regulations and the potential need for amendment (mainly, to add or remove relevant countries or to add references to any future agreements). Even so, it is intended that the few provisions that are to remain in child support regulations be relocated to the main body of regulations for the two child support Acts, the Child Support (Assessment) Regulations 1989 and the Child Support (Registration and Collection) Regulations 1988 .

As a general principle, the provisions in the regulations that are to be relocated into the primary legislation are not being amended, apart from necessary technical and style changes. However, there are some specific policy improvements and rationalisations being made to some of the provisions - these are detailed below.

Meaning of 'reciprocating jurisdiction'

The overseas child support provisions relate to Australia's international maintenance arrangements with certain foreign countries, or parts of countries, known as 'reciprocating jurisdictions'. These jurisdictions are specified in regulations and are the same for both the Child Support Assessment Act and the Child Support Registration and Collection Act. However, the provisions are being amended to reflect the fact that enforcement against payers under child support agreements and child support assessments may be contrary to the law of some of those jurisdictions.

Accordingly, it is provided that an assessment may not be made and a child support agreement may not be accepted in relation to a payer who is a resident of a reciprocating jurisdiction that is specified in regulations to be a jurisdiction of that kind.

One parent to reside in Australia

In several provisions, the need for one parent to reside, or continue to reside, in Australia is being clarified. Some of the provisions currently envisage that both parents may live overseas - this is not the intended policy. Such cases should not be dealt with under Australian child support law.

Applications from overseas and role of overseas authority

New provisions clarify that a parent who is a resident of a reciprocating jurisdiction may apply under Australian law for a child support assessment, or for registration of a child support liability. These new provisions also clarify the correct avenue for making such an application. The following is being provided:

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A payee application may be made if the payee is a resident of a reciprocating jurisdiction. However, it must be made either by the payee and given by the overseas authority of the jurisdiction to the Australian Child Support Registrar, or be made by the overseas authority itself, on behalf of the payee. The required involvement of the overseas authority in making an application reflects the authority's legitimate role in determining whether it is appropriate under the law of the reciprocating jurisdiction to make an application under Australian law. The capacity for the overseas authority to initiate an application reflects the authority's competence to seek reimbursement of child maintenance paid in advance.

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A payer application may be made if the payer is a resident of a reciprocating jurisdiction. This may be made by the payer and given by the overseas authority to the Registrar - otherwise, the payer must apply directly to the Registrar. There is no need in this case to provide for the overseas authority to initiate an application.

These arrangements are consistent with the underlying policy intentions of the international maintenance arrangements - firstly, that payees apply for assessment or registration in the jurisdiction in which they reside (some jurisdictions can issue assessments or liabilities themselves) and, secondly, that applications should generally be received via overseas authorities so that both Australia and the overseas authority are fully aware of current processes.

A further new provision is being set up, to give an overseas authority the power to veto an election by a payee to end a child support assessment that is in force because of an application initiated by the overseas authority. This is similar to an existing provision for 'domestic' cases in which the Secretary of the Department of Families, Community Services and Indigenous Affairs has a power to veto the ending of an assessment, to protect potential outlays on Australian family tax benefit (section 151A of the Child Support Assessment Act).

From 1 July 2008, these arrangements will be modified in line with the 2006 reforms. For example, from that date, there will no longer be a formal distinction between payee and payer applications (since both parents will be assessed in respect of the costs of the child, whoever applies for the assessment).

Child support agreements

It is being clarified that child support agreements (between parents) are on a similar footing to child support assessments for most overseas purposes, just as they are for domestic purposes. Accordingly, it is provided that a child support agreement may be made between parents, one of whom is a resident of a reciprocating jurisdiction. This is to avoid current situations in which, for example, a payer overseas signs an agreement drafted by a payee in Australia but then cannot have the agreement accepted by the Registrar because the payer resided overseas when the agreement was signed. As with assessments, for this rule to apply, one parent must reside in Australia - they cannot both reside overseas.

However, a further new provision will prevent the acceptance by the Registrar of a child support agreement that would override a child assessment that is in force because of an application initiated by an overseas authority. In that case, the overseas authority will have the power to veto the agreement. This is consistent with the arrangements described above for child support assessments.

Preventing dual liabilities and repeated new liabilities

A child support liability may arise from an administrative child support assessment, from a court order, or from a child support agreement between parents. In domestic child support cases, a court order cannot be obtained if the parents are eligible for an administrative assessment. Furthermore, an agreement overrides an assessment, at least to the extent addressed by the agreement. Therefore, there is no possibility of there being more than one domestic liability registered for collection at any one time for the same parents. Nor is there any possibility of the parents attempting to better their respective positions by repeatedly seeking new liabilities (although the merits of the current liability are subject to the usual rights of objection or further review).

However, this issue has proven to be difficult in overseas cases. As a general principle, liabilities should be raised in the jurisdiction in which the payee resides. However, because that is not always possible, it remains open that (depending on the circumstances) either parent may seek an administrative assessment or court order elsewhere. Accordingly, it is possible at any one time for there to be a liability raised by each of the two parents. Furthermore, this situation may be manipulated by one or the other party, or both, as a way of seeking a better personal outcome through a new liability, rather than having the merits of the original liability reviewed in the proper way.

Therefore, a structure is being set up for these arrangements, without unduly limiting parents affected by overseas residence. The following refinements will apply:

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To eliminate the possibility of dual liabilities, it will be provided that one registered maintenance liability ceases to have effect if a second maintenance liability is registered in relation to the same child and parents. (The first liability will, though, remain in effect for the purpose of recovering any arrears under it.)

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However, if the second liability (that is, the one that came to the attention of the Registrar second) actually arose (that is, the liability was created) before the first liability (that is, the registered one), the second one must not be registered. (The second liability may, though, be registered for the purpose of recovering any arrears under it.)

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To minimise repeated new liabilities, the Registrar will be able to refuse to accept an application for an Australian child support assessment that would override an overseas liability already registered.

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However, because the Registrar may in fact accept an application for assessment in some of these cases, there needs to be provision for an ensuing liability to be registered. This is not provided for at present if it should be the payer who seeks the assessment, because a payer cannot apply for registration. Accordingly, this will now be provided for, but only if either the payer or the payee is a resident of a reciprocating jurisdiction. If it is the payer who is a resident of a reciprocating jurisdiction, the application for registration could be made by the payer and given by the overseas authority to the Registrar - otherwise, the payer must apply directly to the Registrar.

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A further new provision is set up to ensure that an Australian administrative assessment has the same effect on an existing overseas maintenance liability as on an existing domestic liability. It will provide that, where an amount of child support becomes payable for a child by a liable parent to another person under an administrative assessment, an existing overseas maintenance liability for the same child payable by the liable parent to the other person ceases to have effect.

Enforcement overseas without payee application

Currently, domestic liabilities may be registered by the Registrar for collection to occur, at the choice of the payee. If a liability is to be enforced overseas, there must currently be an application by the payee. However, in some circumstances, the application for registration will have been made by an overseas authority, under the law of the overseas jurisdiction, or by the payer. To reflect more appropriately the situations in which an overseas liability may arise, the Registrar will be able to seek enforcement of a liability overseas without a specific application by the payee, if considered appropriate.

Overseas income

The provisions that currently apply to determining overseas income in relation to a person covered by an international maintenance arrangement are being extended. These provisions will now also cover a payee who is a resident of a reciprocating jurisdiction but covered by the purely domestic Australian child support provisions. Such a situation is possible under the existing legislation (because a payee does not have to be a resident of Australia), and the same procedures and principles should apply to determining overseas income as apply under the international maintenance arrangements.

Extra time allowances

There will be some rationalisation in the extra time currently allowed by the regulations (for example, 90 days instead of 28 days) for various processes where one parent is a resident of a reciprocating jurisdiction. This extra time is sometimes allowed to a parent and sometimes to the Registrar, recognising the delays involved in some international communications and the need to seek information from an overseas authority. The provisions in question will allow extra time where necessary for an international maintenance arrangement to work efficiently and fairly, but not otherwise. The processes should not be slowed down and one parent's appeal rights deferred unnecessarily.

The extra time allowances that are necessary under international maintenance arrangements will also be available in relation to payees who are residents of a reciprocating jurisdiction but covered by the purely domestic Australian child support provisions. The same time allowances will apply if one of the parents is overseas, regardless of whether the case is covered by international or domestic provisions.

Deemed refusal provisions

Currently in the overseas regulations, there are several provisions deeming the Registrar to have refused to do certain things after a certain period. In most cases, there are no equivalent domestic provisions. To eliminate this inconsistency, these deemed refusal provisions will generally be removed. The provisions are also undesirable in that they could prevent the Registrar from making an appropriate decision after the relevant period. Furthermore, the deemed refusals were originally to allow overseas authorities to object to decisions of the Registrar. This is in fact unnecessary in that such representations work effectively at present on an informal basis.

Date liability first becomes enforceable

Further amendments will make the date from which an overseas maintenance liability first becomes enforceable consistent with domestic cases - on the day on which the Registrar received the application for registration (instead of on the day of the registration itself).

Application of low-income non-enforcement period to overseas maintenance liabilities

The existing section 37B of the Child Support Registration and Collection Act provides for the non-enforcement of certain registered maintenance liabilities during a period of low income for the payer. Section 37B will be amended to make clear that it applies to overseas liabilities.

Access to court

If the Registrar refuses to accept a payee's application for child support administrative assessment, the payee can apply to a court for a declaration that he or she is entitled to an assessment. It will be provided that the court may also make the declaration in respect of a payer who is a resident of a reciprocating jurisdiction. Similarly, a payer may apply to a court for a declaration that the payee is not entitled to an assessment of child support payable by the payer. It will be provided that a payer who is a resident of a reciprocating jurisdiction may also apply for such a declaration.

References to New Zealand Agreement

The overseas child support provisions currently refer in places to the treaty between Australia and New Zealand, or to specific decisions or articles under that treaty. In relocating those provisions, there will be no specific mention of that treaty but provision instead for the regulations to prescribe a treaty, decision or article for the purposes of the relevant provision. This is to provide for any future treaties to be accommodated in the same way as the current one with New Zealand.

Explanation of the changes

Rather than being accommodated in one or more discrete portions of the primary child support legislation, the child support overseas provisions are being incorporated in the various substantive provisions of the primary legislation to which they relate. Accordingly, the relocated provisions will be scattered throughout the legislation, along with the policy improvements and rationalisations mentioned above. What follows is a broad explanation of the basis for each of the items in this Schedule - that is, whether each item is a simple relocation of a particular regulation or makes a policy change (or a combination of the two), whether it is consequential to a relocation or policy change (or both) made by another item in this Schedule, or whether it is generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation.

Commencement

The amendments will generally commence 28 days after Royal Assent, to allow regulations to be repealed or remade as necessary, as discussed above. The amendments will be refined from 1 July 2008 to reflect the 2006 reforms to the child support scheme made by the New Formula Act, while preserving as far as possible the original effect of the provisions.

Child Support Assessment Act amendments

Items 1 to 44 and 114 to 149 amend the Child Support Assessment Act.

Item 2 gives effect to the policy change discussed above: preventing dual liabilities and repeated new liabilities .

Item 3 and new subsection 12(3A), inserted by item 4 , give effect to policy changes discussed above: one parent to reside in Australia and applications from overseas and role of overseas authority . New subsection 12(3B), also inserted by item 4 , gives effect to the policy change discussed above: meaning of ' reciprocating jurisdiction' .

New subsection 12(4A) of the Child Support Assessment Act, inserted by item 5 , relocates Assessment Overseas Regulation 6 into the Child Support Assessment Act. New subsection 12(4B), inserted by the same item, gives effect to the policy change discussed above: one parent to reside in Australia .

Items 6 and 7 relocate Assessment Overseas Regulation 4 into the Child Support Assessment Act.

Items 8, 9, 10 and 116 relocate Assessment Overseas Regulation 11 into the Child Support Assessment Act, incorporating the policy change discussed above: one parent to reside in Australia .

Items 11, 117, 118, 119, 120, 121 and 122 and new subsection 25(3) of the Child Support Assessment Act, inserted by item 12 , relocate Assessment Overseas Regulation 14 into the Child Support Assessment Act, incorporating the policy change discussed above: applications from overseas and role of overseas authority . New subsection 25(4), also inserted by item 12 , gives effect to the policy change discussed above: applications from overseas and role of overseas authority . New subsections 25(5) and (6), inserted by the same item, partially relocates Assessment Overseas Regulation 13 into the Child Support Assessment Act, incorporating the policy change discussed above: applications from overseas and role of overseas authority . The remainder of the regulation will be re-made in a new regulation.

Item 13 and new subsections 25A(3) and (4) of the Child Support Assessment Act, inserted by item 14 , give effect to the policy change discussed above: applications from overseas and role of overseas authority . New subsection 25A(5), inserted by the same item, partially relocates Assessment Overseas Regulation 13 into the Child Support Assessment Act, incorporating the policy change discussed above: applications from overseas and role of overseas authority . The remainder of the regulation will be re-made in a new regulation.

New section 30A of the Child Support Assessment Act, inserted by item 16 , gives effect to the policy change discussed above: meaning of ' reciprocating jurisdiction' . New section 30B, inserted by the same item, gives effect to the policy change discussed above: preventing dual liabilities and repeated new liabilities . Items 15, 123, 124, 125, 126, 127, 128 and 129 are consequential to those policy changes.

Items 17 and 130 relocate Assessment Overseas Regulation 15 into the Child Support Assessment Act.

Items 19, 141, 142 and 143 relocate Assessment Overseas Regulation 16 into the Child Support Assessment Act.

Items 21, 132, 133 and 134 relocate Assessment Overseas Regulation 17 into the Child Support Assessment Act, incorporating a technical amendment clarifying the meaning of the original (substituted) provision.

Items 22 and 135 relocate most of Part 3 of the Assessment Overseas Regulations (regulations 23 and 25 to 27) into the Child Support Assessment Act, incorporating the policy change discussed above: overseas income . Items 1, 18, 20, 23, 24, 25, 26, 27, 28, 114, 115, 136, 137, 138, 139 and 140 make amendments consequential to that relocation and policy change. Items 23 to 28 are also generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation.

Items 29 and 30 give effect to the policy change discussed above: child support agreements .

Items 31, 144 and 145 give effect to policy changes discussed above: one parent to reside in Australia and child support agreements .

Items 32, 146 and 147 are consequential to the policy change discussed above: applications from overseas and role of overseas authority .

Items 33 and 131 give effect to policy changes discussed above: child support agreements and extra time allowances .

Item 34 relocates Assessment Overseas Regulation 7 into the Child Support Assessment Act.

Items 35 and 148 relocate Assessment Overseas Regulation 29 into the Child Support Assessment Act, incorporating the policy change discussed above: references to New Zealand Agreement .

Items 36 and 149 give effect to the policy change discussed above: applications from overseas and role of overseas authority .

Items 37, 38 and 39 give effect to the policy change discussed above: preventing dual liabilities and repeated new liabilities .

New section 162A of the Child Support Assessment Act, inserted by item 42 , relocates Assessment Overseas Regulation 24 into the Child Support Assessment Act and is also generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation. Items 40 and 41 are consequential to that item. New section 162B, also inserted by item 42 , partially relocates Assessment Overseas Regulation 22 into the Child Support Assessment Act. The remainder of the regulation will be re-made in a new regulation.

Items 43 and 44 are generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation.

Child Support Registration and Collection Act amendments

Items 45 to 100, 150 and 151 amend the Child Support Registration and Collection Act.

Items 45, 46, 49 and 50 relocate definitions from Registration and Collection Overseas Regulation 5 into the Child Support Registration and Collection Act.

Items 47 and 48 are generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation.

Item 51 relocates Registration and Collection Overseas Regulation 6 into the Child Support Registration and Collection Act.

Item 52 relocates Registration and Collection Overseas Regulation 7 into the Child Support Registration and Collection Act.

Items 53 and 54 relocate a definition from Registration and Collection Overseas Regulation 5 and also regulation 11 into the Child Support Registration and Collection Act.

Items 55 and 56 are generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation.

New paragraphs (ca) and (cb) of the definition of 'terminating event', inserted by item 57 , give effect to the policy change discussed above: one parent to reside in Australia . New paragraph (cd) of the same definition, inserted by the same item, gives effect to policy changes discussed above: one parent to reside in Australia and applications from overseas and role of overseas authority . New paragraph (ce) of the same definition, inserted by the same item, gives effect to the policy change discussed above: meaning of ' reciprocating jurisdiction' .

Items 58 and 59 relocate Registration and Collection Overseas Regulation 4 into the Child Support Registration and Collection Act.

Item 60 relocates Registration and Collection Overseas Regulation 11 into the Child Support Registration and Collection Act, incorporating the policy change discussed above: references to New Zealand Agreement . Item 61 is consequential to that relocation and policy change.

Item 62 relocates Registration and Collection Overseas Regulation 19 into the Child Support Registration and Collection Act.

Item 63 relocates subregulation 10(4) of the Registration and Collection Overseas Regulations into the Child Support Registration and Collection Act.

New subsections 25(1A) and (1B) of the Child Support Registration and Collection Act, inserted by item 65 , relocate Registration and Collection Overseas Regulation 13 into the Child Support Registration and Collection Act, incorporating the policy change discussed above: applications from overseas and role of overseas authority . New subsections 25(1C) and (1D), inserted by the same item, give effect to policy changes discussed above: applications from overseas and role of overseas authority and preventing dual liabilities and repeated new liabilities . Items 64, 66 and 68 are consequential to the insertion of new subsection 25(1C).

New subsection 25(2A) of the Child Support Registration and Collection Act, inserted by item 67 , relocates subregulations 10(1) and 12(1) of the Registration and Collection Overseas Regulations into the Child Support Registration and Collection Act. New subsection 25(2B), inserted by the same item, relocates subregulation 12(2) of the Registration and Collection Overseas Regulations into the Child Support Registration and Collection Act. New subsections 25(2C) and (2D), inserted by the same item, give effect to the policy change discussed above: preventing dual liabilities and repeated new liabilities .

New section 25A of the Child Support Registration and Collection Act, inserted by item 69 , relocates Registration and Collection Overseas Regulation 22 into the Child Support Registration and Collection Act, incorporating the policy change discussed above: references to New Zealand Agreement . New section 25B, inserted by the same item, relocates Registration and Collection Overseas Regulation 23 into the Child Support Registration and Collection Act. New section 25C, inserted by the same item, gives effect to the policy change discussed above: one parent to reside in Australia .

Item 70 relocates Registration and Collection Overseas Regulation 14 into the Child Support Registration and Collection Act.

New paragraphs 28(1)(d) and (e) of the Child Support Registration and Collection Act, inserted by items 71 and 72 , relocate Registration and Collection Overseas Regulation 15 into the Child Support Registration and Collection Act, incorporating the policy change discussed above: date liability first becomes enforceable . New subsection 28(2), inserted by item 72 , gives effect to the policy change discussed above: preventing dual liabilities and repeated new liabilities .

Item 73 relocates Registration and Collection Overseas Regulation 16 into the Child Support Registration and Collection Act.

Item 74 gives effect to the policy change discussed above: preventing dual liabilities and repeated new liabilities .

Item 75 relocates Registration and Collection Overseas Regulation 31 into the Child Support Registration and Collection Act, incorporating policy changes discussed above: meaning of ' reciprocating jurisdiction' and enforcement overseas without payee application . The new provision (section 30A) includes a clarification that a request under new subsection 30A(2) (by the Registrar to an overseas authority of a reciprocating jurisdiction to have a liability enforced in the jurisdiction) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 , being administrative in nature.

Item 76 makes a minor technical amendment to repeal a superfluous note.

Item 77 relocates Registration and Collection Overseas Regulation 19 into the Child Support Registration and Collection Act.

Items 78, 79, 81 and 83 relocate subregulations 10(1) and (2) of the Registration and Collection Overseas Regulations into the Child Support Registration and Collection Act.

Item 80 gives effect to the policy change discussed above: application of low-income non-enforcement period to overseas maintenance liabilities .

Item 82 relocates Registration and Collection Overseas Regulation 21 into the Child Support Registration and Collection Act.

New subsection 42D(1) of the Child Support Registration and Collection Act, inserted by items 84 and 85 relocates Registration and Collection Overseas Regulation 40 into the Child Support Registration and Collection Act. The other new subsections inserted by item 85 relocate Registration and Collection Overseas Regulations 41 and 42 into the Child Support Registration and Collection Act, incorporating the policy change discussed above: references to New Zealand Agreement .

Items 86, 87, 150 and 151 relocate Registration and Collection Overseas Regulation 25 into the Child Support Registration and Collection Act.

Item 88 relocates Registration and Collection Overseas Regulation 26 into the Child Support Registration and Collection Act.

Items 89 and 92 relocate Registration and Collection Overseas Regulation 38 into the Child Support Registration and Collection Act and generally reflect the policy change discussed above: extra time allowances .

Items 90 and 96 relocate subregulations 10(1) and (2) of the Registration and Collection Overseas Regulations into the Child Support Registration and Collection Act. Items 91 and 100 are consequential to those relocations.

Items 93, 94 and 95 relocate subregulations 10(1) and (2) of the Registration and Collection Overseas Regulations into the Child Support Registration and Collection Act, incorporating the policy change discussed above: extra time allowances .

New section 121A of the Child Support Registration and Collection Act, inserted by item 98 , relocates Registration and Collection Overseas Regulation 8 into the Child Support Registration and Collection Act and is also generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation. Item 97 is consequential to that item. New section 121B, also inserted by item 98 , relocates Registration and Collection Overseas Regulation 9 into the Child Support Registration and Collection Act. New section 121C of the Child Support Registration and Collection Act, inserted by the same item, partially relocates Registration and Collection Overseas Regulation 28 into the Child Support Registration and Collection Act. The remainder of the regulation will be re-made in a new regulation.

Items 99 and 100 are generally consequential to this exercise to accommodate the overseas provisions within the structure of the principal legislation.

Child support offence provisions

Several items in this Schedule ( items 40, 41, 62, 77 and 97 ) amend child support provisions that provide for an offence. In each case, the amendment is to make it clear that the existing offence does not apply in connection with a liability under an international maintenance arrangement. Therefore, the underlying rationale for the offence, and its level, is not affected by the amendments. Furthermore, although the amendments technically appear to narrow the application of the offence to this extent, there is no practical narrowing because the circumstances in which the offence may have applied previously were in fact covered by the overseas related regulations, which provided no offences.

In particular, the offences provided by the provisions being amended by these items are all offences of strict liability. There is no alteration by these amendments to the existing basis for those strict liability offences.

Family Law Act amendments

Items 101 to 113 amend the Family Law Act.

Items 101, 102, 103 and 104 are consequential amendments arising from the insertion of new section 111AA into the Family Law Act, discussed above: effect of Australia-New Zealand Agreement on court's jurisdiction .

Item 105 makes clear that the presumption of parentage in new subsection 69S(1) applies to a finding by a court in Australia.

Item 106 inserts new subsection 69S(1A) to establish a presumption of parentage arising from a finding by a court in a reciprocating jurisdiction or a Convention country.

Item 107 gives effect to the policy discussed above: parentage testing , by adding a new section 69XA. The provisions in new section 69XA have until now been in subregulations 39B(5) to (8) of the Family Law Regulations 1984 . The reference in new section 69XA, and in new section 117AC (inserted by item 112 ), to Schedule 4A is a reference to a Schedule to regulations that is yet to be made. The Schedule will contain a list of the countries that are parties to the 1973 Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations.

Item 108 expands the list of agreements or treaties to which Australia is a party, and for which parentage testing regulations may be made.

Item 109 is a consequential amendment of the kind made by items 101 to 104 .

Item 110 inserts new section 111AA to give effect to the policy discussed above: Effect of Australia-New Zealand Agreement on court's jurisdiction . Item 110 also inserts new section 111AB to provide a regulation-making power in relation to the performance of Australia's obligations under a maintenance agreement between Australia and the United States of America.

Items 111 and 112 insert new section 117AC to prevent a court making an order for security for costs in maintenance proceedings involving a country that is a party to the 1973 Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations.

Item 113 repeals subsection 124A(3) to remove the power to make regulations that are inconsistent with the Act. The reasons that the power was originally inserted are explained in Background .