House of Representatives

Explanatory Memorandum

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

Schedule 4 - Miscellaneous amendments

Summary

This Schedule makes various child support minor policy refinements and technical corrections.

Background

The minor policy measures included in this Schedule are described separately below.

Inclusion in child support assessment, after initial assessment, of a 'relevant dependent child'

A payer's assessed liability for a child may be lower if he or she also has a 'relevant dependent child' (for example, a child of a current relationship). Subsection 39(3) of the Child Support Assessment Act addresses the situation in which the Registrar finds out, after an assessment comes into force, that the payer has a relevant dependent child who was not taken into account in the assessment. There is a technical problem with one of the backdating rules in this provision (paragraph (d)).

The default rule in subsection 39(3) is that the payer is taken to have had the relevant dependent child from the day the Registrar found out that the child is a relevant dependent child (see paragraph (e)). However, there are two backdating rules.

The backdating rule provided by paragraph (d) allows backdating to the day the notice of assessment was given by the Registrar, as long as the Registrar found out, within 28 days after the notice was given, about the child being a relevant dependent child. This rule does not operate correctly. In particular, the notice of assessment being received by the payer (which may well be the first he or she knows about the child support liability) may be considerably later than the start of the liability (which is when the application for assessment was made). The payer should have reflected in his or her assessment, from the start of the liability, the responsibility of having the relevant dependent child. This is being corrected.

Notices of assessment - information given about other children, and information given in child support agreement or court order cases

Section 76 of the Child Support Assessment Act requires the Registrar to give written notice of any administrative assessment made to the parents involved. It also sets down the information that must be included in the notice. This is designed to give the parent concerned a full appreciation of the basis of the assessment that affects him or her (and so inform any decision to object, or respond to an objection). Accordingly, the information required to be included in the notice may vary between specific situations set out in subsection (2). However, section 76 attempts to balance the need to give full information against the need to preserve privacy - that is, only necessary information should be given.

Information given about other children

Several paragraphs in subsection 76(2) require some clarification and refinement to ensure that this balance is achieved in relation to information given about children other than those for whom assessments are made (for example, a child of a current relationship). This is being done by making sure the information that must be notified in each specific situation relates strictly to those matters relevant to the legislative provisions that apply to those situations.

Information given in child support agreement or court order cases

Amendments are also being made to refine the notice requirements when a child support agreement or a court order modifies the administrative assessment. From a privacy viewpoint, the only matters that should be notified are those that informed the assessment, that is, those not overridden by the agreement or court order. Yet section 76 requires that all of the specified matters be notified. This is being corrected.

Rental property loss

For each parent, the child support income amount includes a component known as the parent's rental property loss. This is the amount (if any) by which the parent's allowable deductions under the Income Tax Assessment Act 1997 in respect of rental property exceed the parent's rental property income (other than such income derived as a member of a partnership). Thus, any reduction in taxable income for rental property losses is generally added back into income for child support purposes.

The Australian Taxation Office changed the way in which rental property losses are reported by taxpayers from the 2002-03 income year. The change was to introduce a low value pool deduction. Depreciation (relating to a rental property) that has declined in value to below $1000 may now be claimed as part of a pool along with other unrelated deductions such as education expenses and work related expenses. The value of the pool deduction is given as a separate item in tax returns, and it is not possible to isolate the rental property component from other components of the pool deduction.

Accordingly, rental property loss amounts claimed through a pool may not be readily added back into income for child support purposes.

This problem is being addressed by excluding such amounts from the rental property loss - they will no longer form part of the child support income amount, although the more clearly identifiable rental property components will continue to be treated as they have been. However, this will happen by regulation, because of the potential for change to the taxation arrangements. Accordingly, the only change at present is to insert a regulation-making provision into the child support legislation - regulations will be made soon after.

Recovery of overpayments between payers and payees

A recent case before the full Family Court (Child Support Registrar and Z and T (21 March 2002)) concerned a person (Z) who had been paying child support as the father of the child concerned but who was subsequently established in DNA testing not to be the father of the child. Z had been seeking a refund, from the Registrar, of his child support payments made after a certain point. He had succeeded in a case before a single judge of the court, but this full court decision overturned the earlier judgment so that Z was ultimately unsuccessful.

This ultimate result is in line with the policy intent in such cases. However, the case highlighted considerable confusion about the legislation involved, which the court suggested be clarified. It is proposed to provide that clarification and to safeguard the intended operation of the provisions.

Z had originally accepted being named as the child's father on the birth certificate. Accordingly, the mother's (T's) application for administrative assessment satisfied the requirement of seeking payment of child support from a parent of the child. Child support payments started to be made. After about two years, the DNA test was carried out.

It is generally intended that any amount to be recovered by Z in such circumstances would be recovered as provided by section 143 of the Child Support (Assessment) Act 1989 - in court. As addressed by subsection 143(4), the recovery would be by Z from T, not from the Registrar - this intended outcome is being made clearer, through amendments that make only minimal changes to section 143.

Recovering lesser amounts of child support related debts from third parties

Section 72A of the Child Support Registration and Collection Act gives the Registrar a discretion to require a person who owes money to a child support debtor to pay an amount to the Registrar in whole or partial satisfaction of the debt.

However, if the Registrar chooses to exercise this discretion, there is little choice about the amount that may be required to be paid. In essence, the Registrar must require that an amount be paid that is equal to the whole debt or the whole amount due by the third party to the debtor (whichever is the smaller amount).

In fact, there are some circumstances in which the Registrar may wish to require a lesser amount to be paid - that is, less than the whole debt or less than the whole amount due to the debtor by the third party. For example, if a satisfactory arrangement for the repayment of the debt were to be agreed between the debtor and the Registrar, it may not be necessary to use the section 72A recovery mechanism to the full extent possible. Nor may that be desirable if the debtor relies on the money in question, for example, in a bank account, as the sole means of supporting himself or herself.

Accordingly, amendments will allow the Registrar to require the payment of an amount that may be less than the whole debt or less than the whole amount due to the debtor by the third party.

Duty of payee to notify change of name or address

Subsection 111(2) of the Child Support Registration and Collection Act obliges the payer of an enforceable maintenance liability to notify the Registrar of a change to his or her name or address. An amendment will impose the same obligation on payees so that the liability can be properly administered and incorrect payments avoided.

Application of certain amounts to child support debts

Schedule 5 to the Child Support Legislation Amendment Act 2001 repealed section 72 of the Child Support Registration and Collection Act and substituted a new section 72. The purpose of this, along with the other amendments made by Schedule 5, was to reflect the fact that the child support function had moved to the then Family and Community Services portfolio and that, accordingly, the Child Support Registrar was no longer the Commissioner of Taxation. No substantive change was intended to be made to the operation of section 72 - only the portfolio change was to be reflected, along with necessary minor changes to reflect the current taxation arrangements. However, an unintended substantive change was in fact made, which is now being corrected.

The correction is to resume the former capacity in section 72 to recover from a person's tax refund any debt 'due to the Commonwealth by the person under this Act' (for example, a debt owed by a payee), and not just a 'child support debt' (that is, only a payer debt), as is provided by the erroneously amended section 72.

Secrecy amendments - disclosure to ministers, threats of self-harm and disclosure for the purpose of certain proceedings

The secrecy provisions in the Child Support Assessment Act and the Child Support Registration and Collection Act are being refined to make them more consistent with similar provisions applying in other legislation within the Families, Community Services and Indigenous Affairs portfolio. The main aim of these refinements is to imitate the extensive protection for personal information that applies in, for example, the social security law, while enabling the two ministers who jointly administer the child support legislation to fulfil their respective roles.

The social security provisions on which most of these amendments will be modelled are located either in Division 3 of Part 5 of the Social Security Administration Act or in the Social Security (Public Interest Certificate Guidelines) Determination 2006 (the Public Interest Guidelines), a legislative instrument made under subparagraph 209(1)(a)(i) and paragraph 209(1)(b) of the Social Security Administration Act.

The child support secrecy amendments will achieve the following:

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Ministers (that is, the two ministers who jointly administer the child support legislation) would come within the scope of the secrecy provisions, as they generally do in other legislation such as the social security law.

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The Child Support Registrar (or person authorised by the Registrar) will be able to communicate protected information not only to a law enforcement officer, as currently provided, but also to anyone else (for example, a child protection authority) if it were considered necessary to prevent or lessen a credible threat to the life, health or welfare of a person (that is, a threat by a person against himself or herself or someone else). The people to whom information can be provided will be limited on the basis that a person is only to be provided information where it is necessary to prevent or lessen the threat to life or for the purposes of preventing, investigating or prosecuting an offence.

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The Registrar (or a person authorised by the Registrar) will be able to communicate protected information to a person who had the consent of the person to whom the information relates to obtain that information.

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The Registrar (or a person authorised by the Registrar) will be able to communicate protected information in certain restricted circumstances:

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to correct a mistake of fact about the administration of the child support legislation, if either the integrity of that administration would be at risk if the mistake were not corrected or the mistake related to a matter in the public domain;

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to brief a minister for various purposes related to his or her responsibilities - specifically, to allow the minister to consider or respond to complaints or issues raised with the minister; for a meeting or forum to be attended by the minister; to allow the minister to address information in the public domain to correct a mistake of fact, a misleading perception or impression, a misleading statement or an incorrectly held opinion; about a possible error or delay by the Child Support Agency (CSA); or about an instance of anomalous or unusual operation of the child support legislation;

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to assist in relation to the whereabouts of a missing person, as long as there were no reasonable ground for thinking the missing person would not want the information communicated; or

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to assist in locating a relative or beneficiary of a deceased person or for similar purposes associated with a death.

Before any of these circumstances could apply to justify the release of information, it would need to be established that the information could not reasonably be obtained from a source other than the Department and that the person to whom the information would be communicated had a sufficient interest in the information. A minister administering the child support legislation, or the Prime Minister, would have sufficient interest, or a person who was able to satisfy the Registrar that he or she had a genuine and legitimate interest in the information.

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A new provision will ensure that it would be an offence if a person, incorrectly sent personal information by the CSA (for example, a letter mailed to the wrong person), were to record, communicate or otherwise use that information - this is not covered thoroughly by the current offence provision. In keeping with the current offence provision, the new offence will carry a penalty of imprisonment for one year. The new offence would not apply if a person were to record, communicate or otherwise use personal information that was obtained legally from a source other than the records of the Department or the CSA. The new offence will be a fault-based offence and the default fault elements in the Criminal Code Act 1995 would apply.

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Associated amendments will be made to ensure that people to whom personal information was legitimately given may use or record that information for the purpose for which it was given, but would generally be subject to the offence provision if they were otherwise to use or record it.

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Lastly, it will be clarified that necessary information may be released to a person who has notified the Registrar, in accordance with section 113A of the Child Support Registration and Collection Act, an intention to institute proceedings in court to recover a debt due in relation to a child support liability. The release would be for the purpose of those proceedings alone and the person would become subject to the secrecy provisions in his or her handling of the information.

Explanation of the changes

Commencement

Most of the amendments will commence on 1 January 2008 and be refined from 1 July 2008 to reflect the 2006 reforms, while preserving as far as possible the original effect of the provisions. However, the amendments to the secrecy provisions will commence on Royal Assent.

Items 1 to 10, 21 to 38 and 47 to 53 amend the Child Support Assessment Act.

Items 11 to 20 and 39 to 46 amend the Child Support Registration and Collection Act.

Items 1 to 10 amend the secrecy provision in section 150 of the Child Support Assessment Act. These amendments give effect to the measure described above: secrecy amendments - disclosure to ministers, threats of self-harm and disclosure for the purpose of certain proceedings .

Item 1 repeals the definition in subsection 150(1) of law enforcement officer , which will now be redundant.

Item 2 repeals and substitutes the definition of person to whom this section applies . The main substantive change made is to include within the definition 'the Minister', making the ministers who administer the Act subject to the secrecy provisions, as they are under, for example, the social security law. The substituted definition also recognises that new subsections 150(4) and (4G), inserted by item 9 will allow protected information to be communicated to a person in certain restricted circumstances and, in that case, the person receiving the information will be a person to whom the section applies, as is currently provided for a person receiving information under subsection 150(3). Otherwise, the new definition is to simplify and update the drafting of the provision.

Items 3 and 4 amend the definitions of protected document and protected information to reflect the new capacity to communicate information under the new subsections being inserted by item 9 . Item 5 inserts a new definition of relevant Minister , for the purpose of the new subsections being inserted by item 9 .

Item 4 is to make sure the general prohibition in subsection 150(2) on recording or communicating protected information is subject not only to subsection (3), as currently referred to, but also to the exception covered by new subsection (4), inserted by item 9 . This is done by expressing subsection (2) to be subject to 'this section' so all of the exceptions to recording or communicating protected information contained in section 150 are taken into account.

Item 7 adds to subsection 150(2A) to make sure that it is not an offence for a person to record or communicate protected information for any purpose for which it was given to him or her under the section.

Item 8 repeals and substitutes paragraph 150(3)(e) to make it possible for the Registrar (or person authorised by the Registrar) to communicate protected information to a law enforcement officer or anyone else (for example, a child protection authority) if it is considered necessary to prevent or lessen a threat to the life, health or welfare of a person (that is, a threat by a person against himself or herself or someone else). Furthermore, the existing capacity in paragraph (e), to communicate protected information if warranted for the purpose of preventing, investigating or prosecuting an offence that may be associated with the threat, is preserved.

Item 8 also includes a new paragraph 150(3)(f) as part of the substitution. This makes it possible for the Registrar (or a person authorised by the Registrar) to communicate protected information to a person who has the express or implied consent of the person to whom the information relates to obtain that information. This essentially replicates the provision allowing communication of information in subparagraph 208(1)(b)(ii) of the Social Security Administration Act.

Item 9 repeals subsection 150(4) and substitutes several new subsections. Subsection (4) currently provides that a person breaches the prohibition in subsection (2) on communication of protected information if the person communicates the information to any Minister. In view of the general strengthening of the secrecy provisions, especially now that ministers will be subject to the secrecy provisions, and to make sure ministers may receive protected information if it is necessary to carry out their ministerial responsibilities, the existing subsection (4) is no longer required.

New subsection 150(4) provides a new power for the Registrar (or a person authorised by the Registrar) to communicate protected information in certain restricted circumstances. This directly reflects the social security arrangement (see section 7 of the Public Interest Guidelines). Three criteria must be satisfied.

The first is that the information cannot reasonably be obtained from a source other than the Department - if it can, then a person should pursue that source. The second is that the person to whom the information is to be communicated must have a sufficient interest in the information. The meaning of sufficient interest is addressed by new subsection 150(4A). A relevant Minister (that is, one of the ministers administering the Assessment Act or the Prime Minister) is taken to have sufficient interest. Otherwise, the Registrar (or person authorised by the Registrar) must be satisfied that, in relation to the purpose of the communication, the person concerned has a genuine and legitimate interest in the information. This stringent test will exclude casual, vexatious and other unwarranted requests for information. The third criterion is that the Registrar (or the person authorised by the Registrar) must be satisfied that the communication is for the purpose of one of new subsections 150(4B) to (4F).

New subsection 150(4B) provides the first of the purposes that may justify the communication of protected information, mirroring section 10 of the Public Interest Guidelines. This will apply if it is necessary to communicate the information to correct a mistake of fact in relation to the administration of the Act. It must also be established either that the integrity of that administration will be at risk if the mistake is not corrected, or that the mistake relates to a matter that is or will be in the public domain (regardless of whether the person to whom the information relates consented or consents to the information being made public).

New subsection 150(4C), replicating section 11 of the Public Interest Guidelines, provides a purpose if it is necessary to communicate the information to brief a relevant Minister for various purposes, comprising:

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to consider or respond to complaints or issues raised with the Minister by or on behalf of a person (in writing or orally);

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for a meeting or forum to be attended by the Minister;

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in relation to issues currently, or proposed to be, raised in public by or on behalf of the person concerned so the Minister can correct a mistake of fact, a misleading perception or impression, a misleading statement or an incorrectly held opinion;

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about a possible error or delay by the Child Support Agency; or

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about an instance of an anomalous or unusual operation of the Act.

New subsection 150(4D) mirrors section 12 of the Public Interest Guidelines. It provides a purpose if the information to be communicated is about a missing person and is necessary either to assist a court, coronial enquiry, Royal Commission, department or authority (whether Commonwealth, State or Territory) in relation to the whereabouts of the missing person or to locate a person (including the missing person). The purpose will apply only if there is no reasonable ground for thinking the missing person would not want the information communicated.

New subsections 150(4E) and (4F) replicate section 13 of the Public Interest Guidelines and relate to deceased persons. New subsection (4E) is very similar to new subsection (4D), with the aim of assisting to locate a relative or beneficiary of the deceased person or assisting with formal processes associated with the death, including in relation to the administration of the estate. New subsection (4F) provides a purpose if the information is to be communicated to establish the death of a person or the place where the death is registered.

New subsection 150(4G) is necessary to support section 113A of the Child Support Registration and Collection Act. That section allows a payee to institute a proceeding in court to recover a debt due under a child support liability and the new subsection allows protected information to be communicated to the payee, but only for the purposes of that proceeding. In other respects, once in possession of the information, the payee is covered by the secrecy provisions as discussed above.

Item 10 inserts new section 150AA. This is a new secrecy provision that, again, mirrors arrangements under the social security confidentiality provisions. The purpose of the new section is to provide a remedy, should personal information be communicated incorrectly (for example, an official letter mailed to the wrong person). A remedy for such a situation already exists in, for example, the social security law because the offence of recording, disclosing or otherwise using protected information (see section 204 of the Social Security Administration Act) falls on 'a person'. Therefore, any person, including one incorrectly sent protected information, would commit an offence by subsequently recording, disclosing or otherwise using that information. This has proven to be sufficient protection for that information in cases like these. By contrast, the equivalent child support offence (see subsection 150(2) of the Assessment Act) falls on 'a person to whom this section applies' and this would not necessarily include a person incorrectly sent protected information.

Therefore, new section 150AA establishes a new offence, at the same level as currently contained in subsection 150(2), that is, carrying a penalty of imprisonment for one year. The new offence will apply if 'a person' (not being a person to whom this section applies within the meaning of subsection 150(1), in which case the offence in subsection 150(2) may apply) records, communicates or otherwise uses relevant information. Relevant information is defined to mean information about a person obtained from the records of the Department or the Child Support Agency or information to the effect that there is no information about a person held in those records. This definition equates to the definition of protected information in subsection 23(1) of the Social Security Act, which applies for the social security confidentiality provisions.

Notably, because of the definition of relevant information , the new offence will not apply if a person records, communicates or otherwise uses personal information that was obtained legally from a source other than the records of the Department or the Child Support Agency.

The new offence is a fault-based offence and the default fault elements in the Criminal Code Act 1995 will apply.

Items 11 to 20 make equivalent amendments to the secrecy provision in section 16 of the Child Support Registration and Collection Act.

Items 21, 25 and 47 give effect to the policy refinement discussed above: rental property loss . The regulations that will be necessary to give effect to the new rules will be made as soon as this Bill is enacted, ready for when these amendments commence, 28 days after Royal Assent.

Items 22, 23 and 49 give effect to the policy refinement discussed above: inclusion in child support assessment, after initial assessment, of a ' relevant dependent child' .

Item 24 makes a technical amendment. Section 45A of the Assessment Act describes the entitled carer's 'supplementary amount' for the purposes of the definition of the carer's 'income amount' in section 45. One of the components of the supplementary amount is the carer's 'exempt foreign income' (as mentioned in paragraph 45A(1)(a)). This in turn is defined in subsection 45A(2), but the subsection contains an editing error towards the end. It should refer to the total amount of the carer's relevant exempt income, reduced by certain losses and outgoings 'incurred by the entitled carer [not liable parent] in deriving that exempt income'.

Item 26 makes a technical amendment. The Child Support Legislation Amendment Act 2001 made an amendment to allow the modification to the basic formula for administrative assessment in shared or divided care cases to apply to eligible children who have turned 18, and not just those aged under 18 as currently provided. Another amendment in the same Act inserted a new section to make sure that the continuation of child support once a child has turned 18 is based on the assumption that the child is still 17 for the purposes of the administrative assessment provisions. In fact, the second amendment alone would have been sufficient to achieve the desired result. The first amendment is superfluous and is being undone to avoid confusion.

Item 27 makes a technical amendment. Section 56 of the Assessment Act provides that, for child support purposes, a person's taxable income is generally taken to be the taxable income last assessed before the affected administrative assessment is made. Any later amendment of that assessment is usually disregarded and the assessment already applied continues to apply. However, in certain cases generally connected with tax avoidance, etc, the amended assessment should apply. This is provided by subsection 56(3), which identifies the three cases in a rather lengthy passage that, although technically correct, is prone to being misread. The subsection is being redrafted in a clearer way to avoid misinterpretation. The regulations that currently prescribe provisions and circumstances for the purposes of the subsection will be re-made with the same effect as soon as this Bill is enacted, ready for when these amendments commence, on 1 January 2008.

Items 28 and 48 make a technical amendment. Part 5 of the Assessment Act provides for a person's child support income amount to be based on an estimate of taxable income in certain circumstances. The Child Support Legislation Amendment Act 1998 repealed and substituted a new section 60 in that Part. The effect of the new section is that a child support income amount can now be based on an election (that is, an estimate) only for the remaining days (after the election) in the child support period. That is, it can be so based only prospectively - the previous version of the provision had applied the estimate throughout the income year, including retrospectively. This deliberate change in approach was not followed through, however, in new subsection 60(2), which prevents a person from making such an election if an income amount order is in force in relation to any part of the child support period. This should in fact say 'any part of the remaining [child support] period'.

Items 29, 30, 31, 32, 33, 50 and 51 give effect to the policy refinement discussed above: notices of assessment - information given about other children .

Items 34, 52 and 53 give effect to the policy refinement discussed above: notices of assessment - information given in child support agreement or court order cases .

Item 35 makes a technical amendment. Included in Division 2 of Part 6A of the Assessment Act, dealing with departures initiated through an application from a liable parent or a carer entitled to child support, is a requirement for the Registrar to invite the other party to make a representation regarding the application (see subsection 98G(2)). Division 3 of Part 6A deals with departures initiated by the Registrar. Naturally, there is no application in this case, although the provisions are otherwise generally comparable between the two Divisions. Nevertheless, there is a mistake in the provision in Division 3 that is equivalent to subsection 98G(2). Subsection 98M(3) requires the Registrar to invite each party to the proceedings to make a representation regarding 'the application'. Since there is no application, the provision should refer instead to 'the summary'. This is the summary (mentioned in subsection 98M(2)) of the information that the Registrar used to form the view that the departure determination should be made.

Item 36 makes a technical amendment. Section 98V, in Part 6A (departure determinations), was inserted into the Assessment Act by the Child Support Legislation Amendment Act 1998 , as part of a wholesale repeal and substitution of Part 6A. This was to improve certain aspects of the departure process, particularly addressing concerns raised by a Joint Committee of the time, and in relation to Registrar initiated departure determinations. No explicit change was intended to be made in the substitution of new section 98V over the former provision (section 98M). The new section was substituted in essentially the same form, with certain minor drafting changes. Unfortunately, a minor but critical change was made by oversight - it was never intended. This is that the word 'no' that was in the old section 98M was mistakenly left out of the replacement section 98V. This is being corrected.

Items 37 and 38 gives effect to the policy refinement discussed above: recovery of overpayments between payers and payees .

Item 39 makes a technical amendment. The term 'child support agreement' is defined in section 5 of the Assessment Act. However, this definition does not apply in the Registration and Collection Act, nor is the term defined in that Act itself, although the term is used in that Act and so needs a definition. Accordingly, an identical definition is being inserted into the Registration and Collection Act.

Item 40 makes a technical amendment. Section 67 of the Registration and Collection Act imposes a penalty for late payment of child support debts. The amount of such a penalty is calculated with reference to the 'relevant annual rate'. This is defined, somewhat loosely, in subsection 67(3) as the annual rate of the penalty for unpaid income tax for the time being specified in the Income Tax Assessment Act 1936 . The relevant provision in that Act itself would appear to be the definition of the 'base interest rate' in section 214A. That term in turn has the same meaning as in section 8AAD of the Taxation Administration Act 1953 . However, the relevant annual rate mentioned in section 67 is actually supposed to link to the other term defined in section 8AAD - the 'general interest charge rate' (see subsection 8AAD(1)). The definition of relevant annual rate in subsection 67(3) needs to be amended so that it has the same meaning as the general interest charge rate has in subsection 8AAD(1).

Items 41 and 42 give effect to the policy refinement discussed above: application of certain amounts to child support debts .

Items 43 and 44 give effect to the policy refinement discussed above: recovering lesser amounts of child support related debts from third parties .

Items 45 and 46 give effect to the policy refinement discussed above: duty of payee to notify change of name or address .

Child support offence provisions

Some of these minor policy refinements are to provisions containing offences. None of these measures affects the underlying rationale for the offence and its level. One of the measures is to amend the child support secrecy provisions, as discussed above under items 1 to 20 .

Section 72A of the Registration and Collection Act is also being amended (by items 43 and 44 ) to clarify that an amount that may be recovered from a third party, from money owed by that third party to a child support debtor, may be less than either the total debt or the total amount owed by the third party to the debtor. Failure to pay an amount under the section attracts an offence (of strict liability), which would also apply in relation to this lesser amount to be recovered. Accordingly, this amendment also does not affect the rationale for, and level of, the offence.

Lastly, payees are to be included with payers in the ambit of the notification requirement imposed by section 111 of the Registration and Collection Act ( items 45 and 46 ). Failure to notify attracts an offence (of strict liability). Accordingly, although the application of the offence in this case is being widened, it does not affect the rationale for, and level of, the offence. Strict liability is an appropriate basis for the offence as applied to payees, as it is to payers, because of:

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the difficulty the prosecution would have in proving fault (especially knowledge or intention) in this case;

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the fact that the offence is minor (a fine of $1000); and

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the fact that the offence does not involve dishonesty or other serious imputation affecting the person's reputation.