LUTON v LESSELS & ANOR

Judges: Gleeson CJ
Gaudron J
McHugh J

Kirby J
Hayne J
Callinan J

Court:
Full High Court of Australia

MEDIA NEUTRAL CITATION: [2002] HCA 13

Judgment date: 11 April 2002

---

Kirby J

81. These proceedings come before the Full Court on a case stated by Callinan J. ^[100] Case stated, 13 March 2001. They raise two questions of a constitutional character, concerning the legislative scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) (``the Registration and Collection Act'') and the Child Support (Assessment) Act 1989 (Cth) (``the Assessment Act'') (together, ``the Acts'').

82. The first question concerns the validity of the Acts, it being contended that they amount to ``laws imposing taxation'' within the meaning of s 55 of the Constitution and do not comply with the requirements governing laws of that character. The second is whether, by purporting to authorise the Child Support Registrar (``the Registrar'') to make assessments and determinations, enter particulars, issue notices and collect and apply payments, the Acts invalidly attempt to confer on the Registrar the judicial power of the Commonwealth, contrary to the requirements of Ch III of the Constitution.

The facts and issues

83. Mr Anthony Luton (``the plaintiff'') and Ms Gillian Lessels (``the first defendant'') began to cohabit in a de facto relationship, in about November 1991. They never married. In August 1992 cohabitation ceased. In February 1993, a child was born as a consequence of their relationship. The legislative provisions governing the financial support of that child have given rise to the present controversies.

84. In July 1993, the first defendant applied to the Registrar (the second defendant) for an assessment under the Assessment Act and registration of a child support arrangement under the Registration and Collection Act. In August 1993, the Registrar made an assessment of the liability of the plaintiff to pay child support. Pursuant to the Registration and Collection Act, the Registrar registered a registrable maintenance liability that arose as a result of such assessment. ^[101] Registration and Collection Act, s 24A. In October 1994, the Registrar amended that assessment ^[102] Assessment Act, s 75. and varied the commencement date after which the plaintiff had to pay child support. The particulars entered in the Child Support Register were amended to conform to this variation. ^[103] Registration and Collection Act, s 37A.

85. There followed applications and counter- applications to the Registrar. In December 1993, the first defendant applied for a ``departure'' from the assessment previously made, so as to increase the rate of child support payable. ^[104] Assessment Act, s 98B. A number of grounds are set out in the Assessment Act, s 117. In February 1994 the plaintiff, by way of reply to the first defendant's application, sought a reduction in the child support payable. ^[105] Assessment Act, s 98G(2).

86. In April 1994 a Child Support Review Officer, acting as a delegate of the Registrar, made assessments of the child support income payable ^[106] Assessment Act, s 98C. for the period 1 January 1994 to 30 June 1994, for the ensuing year and subsequent years. The Registrar entered particulars of the assessments in the Child Support Register. ^[107] Registration and Collection Act, s 37A.

87. The Registrar has enforced collection of the amounts payable by the plaintiff in various ways, including by issuing notices to the plaintiff's employers to make deductions from his salary. ^[108] Registration and Collection Act, s 45(1) and (2). In accordance with such notices, the plaintiff's employers have made periodic deductions of that kind ^[109] Registration and Collection Act, s 46. and have paid the amounts to the Registrar. ^[110] Registration and Collection Act, s 47. The Registrar has also applied an amount owing by the Commonwealth to the plaintiff under the Income Tax Assessment Act 1936 (Cth) in reduction of the debt due by the plaintiff to the Commonwealth. ^[111] Registration and Collection Act, s 72. By inference, the Registrar has paid the sums so received to the first defendant, who has the care and custody of the child.

88. The questions asked in the case stated are set out in the reasons of other members of this Court. ^[112] Reasons of Gleeson CJ at [ 29], Gaudron and Hayne JJ at [ 78], Callinan J at [ 150]. There is no point in repeating them.

89. Several amendments have been made to the Acts whose validity is in question in these proceedings. The questions in the case stated do not identify the date at which the issue of validity is to be determined. However, it was not disputed that the answers could be given by reference to the legislation as it now stands. The relevant legislation has been described in the

---

ATC 4326

reasons of Gleeson CJ, Gaudron and Hayne JJ and Callinan J. ^[113] Reasons of Gleeson CJ at [ 4]- [ 7], Gaudron and Hayne JJ at [ 32]- [ 46], Callinan J at [ 152]- [ 175].

90. Few would question the ethical principle that ``parents of a child have the primary duty to maintain the child''. <sup>[114]</sup> Assessment Act, s 3(1). Few, if any, would cavil with legislation intended, as the Assessment Act proclaims it is, to ``ensure that children receive a proper level of financial support from their parents''. ^[115] Assessment Act, s 4(1). However, the issues before the Court are not whether the legislation has laudable objectives or beneficial consequences in its ordinary operation. The only issues are the two points of constitutional objection raised by the plaintiff.

Constitutional underpinning

91. Except under its territories power ^[116] Constitution, s 122. and any other specific powers applicable, the Federal Parliament does not have general legislative power to make laws with respect to the children of a couple who are unmarried (``ex-nuptial children''), such as the child of the plaintiff and the first defendant. There is power to make laws with respect to divorce and matrimonial causes ``and in relation thereto, parental rights, and the custody and guardianship of infants''. ^[117] Constitution, s 51(xxii). There is also power to make laws with respect to ``child endowment'', which makes no distinction in respect of the marital status of the child's parents. ^[118] Constitution, s 51(xxiiiA). However, neither of those powers afforded the legislative authority to the Federal Parliament necessary to extend the application of the Acts to apply to the support of the child of the present parties.

92. In relation to ex-nuptial children, the validity of the impugned Acts in relation to the Australian States rests upon a reference of power to the Commonwealth under the Constitution. ^[119] Constitution, s 51(xxxvii). Such reference was envisaged by the terms of the Acts ^[120] Assessment Act, s 13; Registration and Collection Act, s 5. and has occurred in five of the States, ^[121] Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1986 (Vic); Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); and Commonwealth Powers (Family Law) Act 1987 (Tas). with Western Australia adopting the federal Act as a State Act. ^[122] Child Support (Adoption of Laws) Act 1990 (WA). The Acts, so far as they relate to the maintenance of children, ``appl [ y] in and in relation to the Territories''. ^[123] Registration and Collection Act, s 5(3); Assessment Act, s 13(3). See also Registration and Collection Act, s 9.

93. The plaintiff, first defendant and the child are resident in Australia. By virtue of the foregoing provisions, the two Acts apply in relation to the parties and the child. This was not contested. The validity of the Acts in so far as they depended upon the reference of powers was also not disputed. Nor did any party suggest that a referral of power could alter or limit, even by implication, any of the express terms of, or implications in, the federal Constitution. A power referred to the Federal Parliament under the Constitution, ^[124] Constitution, s 51(xxxvii). like any other power in s 51 of the Constitution (including the taxation power ^[125] Constitution, s 51(ii). ), is subject to the requirements of s 55 of the Constitution and of Ch III.

The first issue - are the Acts taxation laws?

94. The usual criterion : Where contested questions arise as to whether an impugned law is one ``imposing taxation'', it is common for this Court to start with the definition of such a law offered by Latham CJ in Matthews v Chicory Marketing Board (Vict) . <sup>[126]</sup> (1938) 60 CLR 263 at 276. See Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 189 [ 132] (`` Airservices '') where Gaudron J described this as the ``traditional'' understanding. According to his Honour's description, a law imposing taxation is one that involves ``a compulsory exaction of money by a public authority for public purposes, enforceable by law, and... not a payment for services rendered''.

95. The plaintiff's argument : The plaintiff submitted that when that traditional definition was applied to the facts of this case, the impugned legislative scheme constituted ``laws imposing taxation''. His argument went thus: There is an exaction of money by a public authority because, by the Registration and Collection Act, a debt of a purely private character is converted into one to the Commonwealth and provision is then made for compulsory deduction of that debt from a person's salary, wages or other entitlements, just as tax instalments are commonly so deducted. Such deductions do not represent a payment by the plaintiff for services rendered by the Commonwealth, the Registrar or any other public authority. They are ``enforceable by law'' in accordance with the scheme of enforcement laid down by the Registration and Collection Act. Moreover, the exaction of moneys, from people like the plaintiff, is for a public purpose. That is the provision of support for a defined class of children and the enforcement of payment for that purpose from the sources of funds available to the liable parent who has not made payments for child support acceptable to the other parent and to the law.

96. Taxation laws and the parliamentary context : In giving meaning to the expression ``laws imposing taxation'' in s 55 of the Constitution, it is essential both to see that section in its context, particularly in relation to the restrictions imposed by s 53, and to recall the history that preceded the making of the

---

ATC 4327

Constitution. Much of the recent Australian debate about the meaning of ``laws imposing taxation'' has taken place with only occasional glances at these considerations.

97. To the extent that the expression ``laws imposing taxation'' is given an over-broad meaning, s 55 could have consequences that tend to throw the integrated constitutional provisions out of joint. Section 53 of the Constitution provides that `` [ p]roposed laws appropriating revenue or moneys, or imposing taxation , shall not originate in the Senate'' and that `` [ t]he Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.'' <sup>[127]</sup> Constitution, s 53 (emphasis added). The grant of legislative power to make laws with respect to taxation should be noted, <sup>[128]</sup> Constitution, s 51(ii). as well as the provisions in Ch IV of the Constitution (``Finance and Trade'') establishing the Consolidated Revenue Fund and requiring that `` [ a]ll revenues or moneys raised or received by the Executive Government of the Commonwealth'' shall form that Fund, to be appropriated for the purposes of the Commonwealth in the manner provided by the Constitution. <sup>[129]</sup> Constitution, s 81. This provision may be traced to the Imperial Statute 27 Geo III c 13 (1787), which sought to ensure that the revenues of the Crown, including taxes, were brought together in one Consolidated Fund under the control of Parliament: Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 503 (`` Tape Manufacturers ''); Northern Suburbs General Cemetery Reserve Trust v The Commonwealth 93 ATC 4118 at 4126-4127; (1992-1993) 176 CLR 555 at 575-577 . Within Ch IV is a provision limiting the drawing of money from the Treasury of the Commonwealth ``except under appropriation made by law''. ^[130] Constitution, s 83.

98. The foregoing provisions are not features peculiar to Australia's constitutional arrangements. Their origins may be traced to the constitutional struggles in England and in the American colonies by which, ultimately, the authority of the people, in the respective Houses of Parliament directly elected by the people, was successfully asserted to determine conclusively the revenue that could be raised by way of taxation.

99. In the Bill of Rights of 1688, for the purpose of ``Vindicating and Asserting... ancient Rights and Liberties'' of the people of England, it was enacted that ``... the levying Money for or to the Use of the Crown by pretence of Prerogative without Grant of Parliament for longer time or in other manner than the same is or shall be granted is Illegal''. ^[131] Bill of Rights 1688 1 Will & Mar Sess 2 c 2. In the Australian colonies, before Federation, this principle had been upheld as axiomatic and as an inherited part of Australian law. ^[132] Stevenson v R (1865) 2 WW & A'B (L) 143 at 159 ; cf FC of T v Munro (1926) 38 CLR 153 at 187-188 . Soon after Federation, in England, the principle was again reiterated. ^[133] Bowles v Bank of England [ 1913] 1 Ch 57 at 84-85 . Later still, in Re Dymond , ^[134] (1959) 12 ATD 1; (1958-1959) 101 CLR 11. Menzies J pointed out that the provisions of the Constitution, notably ss 53 and 55, reflected the parliamentary convention which: ^[135] Re Dymond; Ex parte The Debtor (1959) 12 ATD 1 at 7-8; (1958-1959) 101 CLR 11 at 27-28 .

``prevented the Lords from amending Bills which they received from the Commons dealing with aids and supplies, so as to alter, whether by increase or reduction, the amount of a rate or charge - its duration, mode of assessment, levy, collection, appropriation, or management; or the persons who pay, receive, manage, or control it; or the limits within which it is leviable.''

100. The Australian Constitution involved a mixture of features borrowed from English and United States constitutional law. ^[136] Constitution of the United States of America , Art 1, s 7 (``All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills''). The preoccupations of the founders of the Australian Constitution, in this respect, concerned four main themes:

• • To avoid discrimination between the States, or parts of the States, in the raising of taxation; ^[137] Constitution, s 51(ii).
• • To provide for the case of deadlock between the House of Representatives and the Senate in the making of laws having revenue implications; ^[138] Constitution, s 57.
• • To prevent the House of Representatives using its pre-eminence, in originating laws appropriating revenue or moneys or imposing taxation, in ways that would diminish the legitimate powers of the Senate to amend other laws; and
• • To render the collection and expenditure of all revenue subject to law, ^[139] Through the provisions of ss 81, 82 and 83 of the Constitution: see Tape Manufacturers (1993) 176 CLR 480 at 505-506, 522; Airservices (1999) 202 CLR 133 at 260-261 [ 372]. and hence to judicial superintendence.

101. A fear that s 55 of the Constitution might be misused to incorporate in a ``law imposing taxation'' provisions in some ways related to, but essentially concerned, with wider questions of policy had troubled this Court from its earliest days. In Osborne v The Commonwealth , <sup>[140]</sup> (1911) 12 CLR 321 at 353. Barton J described this device (``tacking'') as one which, if unrestrained:

``would... annihilate the intended powers of the Senate, who, favouring some and dissenting from the rest, would find themselves forced either to pass the entire agglomeration, perhaps including much that they considered an outrage on the interests of the States they represented; or to reject all, and thus perhaps cripple the finances of the Commonwealth.''

---

ATC 4328

His Honour pointed out that this consideration was more serious: ^[141] (1911) 12 CLR 321 at 353.

``when it is remembered that the sections dealing with the powers of the two Houses inter se , viz 53 and 54, contain no provisions whatever against the `tacking' of tax Bills, and only one against the tacking of extraneous matter to an appropriation Bill, and that, the ordinary annual one. We cannot fail to remember that the Constitution designed the Senate to be a House of greater power than any ordinary second chamber.''

102. This exposition of the purposes of s 55 was repeated by Barton ACJ in Buchanan v The Commonwealth . ^[142] (1913) 16 CLR 315 at 328-329. It is in consequence of this rule that an Australian parliamentary convention has developed: ^[143] Re Dymond; Ex parte The Debtor (1959) 12 ATD 1 at 8; (1958-1959) 101 CLR 11 at 28 per Menzies J.

``... of having separate `tax' Acts and `assessment' Acts which goes beyond what is necessary to avoid invalidity under s 55, but which is directed to securing to the Senate a wider power of amendment than it would have if tax Acts were themselves to contain the machinery for the assessment, collection and enforcement of tax.''

103. It was after explaining the history of the origins of s 55 of the Constitution, and its purposes within the Australian Commonwealth and the Parliamentary conventions that have grown around it, that Menzies J in Re Dymond ^[144] (1959) 12 ATD 1 at 8; (1958-1959) 101 CLR 11 at 28. remarked that this Court had always adopted a ``strict construction of s 55''. It is such a ``strict construction'' that avoids an overreach of the expression ``laws imposing taxation''. Such overreach would have consequences not only inconvenient to efficient lawmaking by the Federal Parliament but, far more importantly, inimical to the legitimate powers of the Senate, envisaged by the Constitution, and the character and functions of that House of the Parliament as they have emerged during the Constitution's history.

104. Characterising the law : Ultimately, the task of a court addressing the argument that a law is one with respect to or imposing taxation (whether for the purposes of s 51(ii) or ss 53 and 55 of the Constitution), is to characterise the law in question. ^[145] Airservices (1999) 202 CLR 133 at 177 [ 88]. A court, performing the task of characterisation, will remember the historical and constitutional purposes behind the provision, the constitutional consequences of a decision that a law is one imposing taxation, and the fact that the phrase is ultimately not a term of art but one of ordinary English language evoking an impression based upon a consideration of the entire legislative scheme.

105. Compulsory exaction : Much of the argument of those who supported the validity of the legislation was addressed to attempting to show that the legislation, specifically the Registration and Collection Act, did not involve an ``exaction'' of moneys or, if it did, that such ``exaction'' was not ``for public purposes''. I regard those arguments as unpersuasive.

106. The submission that there was no ``exaction'' rested on a contention that the obligation to pay the statutory child support was separately imposed on the liable parent by the Assessment Act and no additional financial burden was cast on that parent merely by transferring the debt from one owed to the carer to one owed to the Commonwealth. However, the fact that the identity of the creditor is changed does not mean that the law is any less an ``exaction'' of money by a public authority. To hold otherwise would be to decide the question by reference to the form of the exaction rather than its substance and character as a compulsory public financial imposition.

107. Moreover, owing a debt to the Commonwealth may be significantly more exacting than owing it to a private individual. That individual, as a single parent, will often be vulnerable and without the resources to effect recovery. The Commonwealth, on the other hand, has large resources and substantial powers to exact recovery. Those powers include enforceable duties placed upon employers to make deductions from salary or wages. ^[146] Registration and Collection Act, ss 51-56. It would, therefore, be artificial to deny that the Registration and Collection Act involves a compulsory ``exaction'' of money by a public authority of the Commonwealth, in this case the Registrar.

108. For public purposes : Similarly, the Registrar's contention that such exaction was not ``for public purposes'' is unpersuasive. That argument was advanced on the footing that the public authority engaged in recovery of the designated child support under the Registration and Collection Act was no more than a conduit for the payment of moneys primarily owing by the liable parent to the carer as a private debt created by the Assessment Act. However, once that private debt was converted, by the Registration and Collection Act, into a debt to the Commonwealth recoverable by the

---

ATC 4329

Commonwealth using the methods provided, it became an enforceable exaction ``for public purposes''.

109. The public has an obvious interest in the receipt by children of ``a proper level of financial support from their parents''. <sup>[147]</sup> Assessment Act, s 4(1). There is thus a ``public purpose'' in ensuring that this aspirational idea is translated into effective payments by an efficient system of registration and collection. Without more, this establishes the ``public purposes'' of the Registration and Collection Act.

110. South Australia, one of the States intervening, suggested an additional consideration relevant to this point. That State submitted that, with the referral of powers from the State to the Commonwealth, the traditional powers and duties of the Crown, and its rights and responsibilities as parens patriae in relation to the welfare of such children, were also transferred. ^[148] cf Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 254-263 ; P v P (1994) 181 CLR 583 at 607 ; AMS v AIF (1999) 199 CLR 160 at 189-190 [ 85]- [ 88]. Such powers may indeed have passed to the Commonwealth under the transfer of powers. However, in order to find a public purpose, no resort to notions of parens patriae is necessary.

111. Another argument in support of the finding of a ``public purpose'' is the requirement for payment into the Consolidated Revenue Fund. Whilst the interposition of the Consolidated Revenue Fund is not determinative of the character of a payment as a ``tax'', it is relevant to characterising the exaction as one for public purposes and thus as having a feature common to ``laws imposing taxation''. ^[149] Tape Manufacturers (1993) 176 CLR 480 at 504; cf The King v Barger (1908) 6 CLR 41 at 82 ; Parton v Milk Board (Vict) (1949) 80 CLR 229 at 258 ; Moore v The Commonwealth (1951) 9 ATD 283 at 286; (1951) 82 CLR 547 at 561 .

112. Revenue raising : The fundamental argument, advanced by both sides, related to whether the impugned Acts involved any nett revenue for the Commonwealth, centred on s 53 of the Constitution, which distinguishes between laws imposing taxation and laws imposing penalties and fees for services. In relation to the argument of revenue raising, the plaintiff relied on the holding of this Court in Tape Manufacturers . ^[150] (1993) 176 CLR 480. That was a case concerning legislation with some similarities to the Acts under consideration here.

113. Various arguments were offered to distinguish the legislation declared a ``tax'' in Tape Manufacturers and the legislation under consideration in these proceedings. The Registrar submitted that the difference was to be found in the fact that the legislation in Tape Manufacturers imposed its monetary exaction upon one group in the community for the benefit of another group, ^[151] Tape Manufacturers (1993) 176 CLR 480 at 504. whereas the legislation in question here imposed liability on a particular individual, interposed the Commonwealth as a conduit of obligations, and provided for the payment of the exact amount recovered to the other individual concerned.

114. This argument is also unconvincing. Whilst the exaction of moneys in the legislation considered in Tape Manufacturers did, in one sense, address ``groups'' in the community, so does the present legislation. Legislation, of its nature, is normally concerned with the general and not, as such, with individuals. The obligation to pay the ``royalty'' in issue in Tape Manufacturers eventually fell upon the individual purchaser of a single blank tape. Ultimately, payments were contemplated by the legislation there considered from the collecting society to an individual member who was a relevant copyright owner or that member's agent. ^[152] Copyright Act 1968 (Cth), s 135ZZU (inserted by Copyright Amendment Act 1989 (Cth), repealed by Copyright Amendment Act 1993 (Cth) and substantially replaced by the current s 135ZZT, as inserted by Copyright Amendment (Digital Agenda) Act 2000 (Cth)): Tape Manufacturers (1993) 176 CLR 480 at 496. The feature of a conduit was equally applicable. The only difference was that, in the present case, the conduit led into and out of the constitutional Consolidated Revenue Fund, thereby enhancing the character of the present laws (or at least the Registration and Collection Act) as ones imposing a ``tax'', when compared with the law under consideration in Tape Manufacturers .

115. The concern of principle which chiefly appeared to trouble the majority in Tape Manufacturers was, with respect, a legitimate one. It was a concern that the legislative technique attempted there could, if upheld, effectively circumvent the constitutional requirement that moneys exacted compulsorily by federal law should be paid not, as there, to a private company but through the Consolidated Revenue Fund by which all revenue raised by taxes imposed by the Parliament is brought under the control of the Parliament ^[153] Tape Manufacturers (1993) 176 CLR 480 at 505-506. and in that way to ensure that the recovery and expenditure are carried out in accordance with law. These are not concerns in the present case. On the face of things, the Tape Manufacturers decision presents difficulties both in some of its reasoning and in its outcome, for the validity of the Acts impugned in these proceedings.

116. The Registrar sought leave, if necessary, to reargue the correctness of the holding in Tape Manufacturers if this Court were to conclude that the principles for which it stood necessitated a conclusion that the laws

---

ATC 4330

impugned here were ``laws imposing taxation''. In the end, I do not believe that it is necessary to reconsider Tape Manufacturers . It was a decision arrived at by a narrow majority. There was a particular feature of the legislation that contributed to the majority conclusion. The statutory scheme in question was unique and significantly different from that under consideration here. Neither the majority nor the minority in Tape Manufacturers purported to do more than to apply established doctrine.

117. By that doctrine, the most significant feature that distinguishes a ``law imposing taxation'' from one that does not, is that such a law, with very few exceptions, ^[154] Airservices (1999) 202 CLR 133 at 178 [ 90]. has the purpose and effect of raising general revenue for the government. This is the view that has also been expressed in the United States Supreme Court. In United States v Butler it was said: ^[155] 297 US 1 at 61 (1936); cf United States v Munoz-Flores 495 US 385 at 397-398 (1990) .

``A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government. The word has never been thought to connote the expropriation of money from one group for the benefit of another.''

To like effect are decisions of the Supreme Court of Canada and other final courts of Commonwealth countries. ^[156] Massey-Ferguson v Saskatchewan [ 1981] 2 SCR 413 at 432 ; cf Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388 at 395 .

118. Many remarks in this Court before, ^[157] Fairfax v FC of T (1965) 14 ATD 135 at 144; (1965) 114 CLR 1 at 19 per Windeyer J. in ^[158] Tape Manufacturers (1993) 176 CLR 480 at 501-502, 522, 530. See also Northern Suburbs General Cemetery Reserve Trust v The Commonwealth 93 ATC 4118 at 4122; (1992-1993) 176 CLR 555 at 568 . and since ^[159] Airservices (1999) 202 CLR 133 at 178 [ 91], 239 [ 310]. Tape Manufacturers have laid emphasis on this core feature of the notion of a ``law imposing taxation''. It is a feature that is reinforced, in Australian cases, by the ``setting of the Constitution''. ^[160] Referring to the Constitution, ss 81 and 82. See Tape Manufacturers (1993) 176 CLR 480 at 530 per McHugh J. However, two points need to be noted. The first was pointed out by Gleeson CJ and myself in Airservices , where it was said that: ^[161] Airservices (1999) 202 CLR 133 at 178 [ 91].

`` [ n]ot all taxation has as its primary purpose the raising of revenue; and some forms of taxation are notoriously inefficient means to that end. An objective of raising revenue is not, therefore, a universal determinant. Even so, the presence or absence of such an objective will often be significant.''

119. Secondly, the exaction of money does not always amount to revenue raising for general governance. Most federal laws envisage government activity of some kind. Such activities have an inevitable economic cost. More than at the time of federation, various expedients are now adopted by legislation to and otherwise to recover some of these costs for the Commonwealth and its agencies. In Airservices , ^[162] (1999) 202 CLR 133 at 238-239 [ 309]. McHugh J said (in terms with which I agree):

`` [ I]t is legitimate to take account of the changing circumstances of government which are exemplified by the devolving of functions from government departments to statutory authorities or other corporate bodies which, under the terms of their enabling statutes, have a monopoly on the provision of a certain service and are directed by the legislature to provide those services on a `user pays' basis. Charges by such authorities and bodies should be seen as essentially cost driven, imposed on users for the purpose of reimbursing the cost of services provided. They should not be approached as if they were imposed simply to raise revenue for the general government of the country.''

(footnote deleted)

120. Therefore, the weight of authority supports the proposition that the issue of revenue raising is a significant, if not determinative, feature of a law with respect to taxation.

121. Conclusion: not a tax law : When this approach is adopted in the case of the legislation impugned here, and in particular the Registration and Collection Act, it is my view that it cannot be characterised as a ``law imposing taxation'' within s 55 of the Constitution. It may be conceded that there are some indications which support that characterisation. These have been mentioned and must be given weight. But the most telling feature of the Acts in question is that neither of them, directly or indirectly, performs a revenue raising function for the purposes of government. The most that can be said is that, by enacting the law, the Commonwealth might be seeking to deflect some of the burden that would otherwise fall on the revenue for child support by social security to a parent in receipt of salary, wages, or other income who should assume the primary responsibility for providing ``a proper level of financial support'' to a child. But no nett increment is made to the revenue for use on general government purposes or otherwise. On the contrary, the financial burden of implementing the scheme is borne by the Commonwealth and, in exceptional

---

ATC 4331

circumstances, the Commonwealth acts as a guarantor of defaulting employers.

122. This conclusion relieves me of the obligation to consider the alternative argument of the Registrar addressed to a question that has long awaited determination and that is presented by the closing words of s 55 of the Constitution. In the conclusion that I reach about the application of s 55 to this case, no question of invalidity for non-compliance with the section needs to be considered. The first issue must be resolved against the plaintiff.

The second issue - are the Acts contrary to judicial power?

123. The ``dual aspect'' of the power : The second argument for the plaintiff was that the powers conferred on the Registrar by the Acts invalidly purported to confer on the Registrar the judicial power of the Commonwealth, contrary to Ch III of the Constitution.

124. This Court has said many times that it is impossible to give an exhaustive definition of judicial power. ^[163] See Cominos v Cominos (1972) 127 CLR 588 at 606 ; Precision Data Holdings Ltd & Ors v Wills, Adler and Jooste & Ors (1992) 10 ACLC 1 at 8; (1991) 173 CLR 167 at 188-189 ; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 67 ; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257, 267 (`` Brandy ''); Nicholas v R (1998) 193 CLR 173 at 256 [ 201.3]. Where functions are conferred upon administrative authorities or officers of the Commonwealth, in the first instance, with later facilities of ``appeal'' or ``review'' by courts, this Court has repeatedly held that the power in question may assume a ``double aspect''. It may take its character from the repository of the power - whether judicial or administrative - so long as the power, of its nature, is not forbidden to either. ^[164] Brandy (1995) 183 CLR 245 at 261-262. Thus: ^[165] Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 660; see also at 659 , referring to FC of T v Munro (1926) 38 CLR 153 , Shell Co of Australia Ltd v FC of T (1930) 44 CLR 530 at 545; [ 1931] AC 275 at 298 (PC); Pasini v United Mexican States [ 2002] HCA 3 at [ 12], [ 48], [ 59] .

`` [ w]ords which might otherwise be sufficient to confer judicial power may be governed by the context as well as by the character of the body or person upon whom the power is conferred and may be construed as going no further than granting administrative power.''

125. The clearest instance of the conferral of judicial and administrative functions in a compendious statutory formula that was upheld as constitutionally valid, was the one examined in R v Quinn; Ex parte Consolidated Food Corporation . ^[166] (1977) 138 CLR 1. As the features of judicial power have recently been re-examined by this Court, ^[167] See Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 109-110 [ 40]- [ 42], 124-128 [ 78]- [ 86] ; Nicholas v R (1998) 193 CLR 173 at 186-190 [ 16]- [ 24], 218-222 [ 107]- [ 114], 254-263 [ 201]- [ 207] ; Pasini v United Mexican States [ 2002] HCA 3 at [ 12]- [ 13], [ 51]- [ 60], [ 62]- [ 71] . and as there is unanimity about them, it is unnecessary to traverse the same field again. However, I will address the relevant features as they have been argued in this instance.

126. Creating rights and duties : The plaintiff submitted that the Registrar was invalidly empowered by the Acts to determine that one citizen will have some of their property taken away and given to another citizen. However, there are many features of the legislation that take the conduct of the Registrar outside a purported usurpation of the judicial power of the Commonwealth. Neither the acceptance of an application made by an eligible carer, nor the assessment of child support payable by a liable parent, in accordance with the formula provided by the Assessment Act, represents a conclusive determination of pre-existing rights or obligations arising from the operation of law on past events. ^[168] cf Precision Data Holdings Ltd & Ors v Wills, Adler and Jooste & Ors (1992) 10 ACLC 1 at 8; (1991) 173 CLR 167 at 188 ; Brandy (1995) 183 CLR 245 at 268. Rather, once the assessment is made, it creates new rights and obligations concerning the respective parties to it, addressed thenceforth to the future. It is thus a classic case of an administrative determination although, as with most such determinations in a society such as ours, it is made by the administrator in accordance with pre-conditions laid down by law. ^[169] cf R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 371, 378 ; Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 111 [ 45], 128-134 [ 87]- [ 101]; cf FC of T v Munro (1926) 38 CLR 153 at 176-177 .

127. Lack of conclusiveness : The assessment by the Registrar also lacks the feature of conclusiveness that is a special characteristic of the exercise of judicial power. ^[170] Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 111-112 [ 46], 132 [ 96]. Access is provided to a court for a declaration that the applicant is, or is not, entitled to the assessment made. ^[171] Assessment Act, ss 106, 106A, 107. Provision is also made for an ``appeal'' to a court having jurisdiction under the Assessment Act where a liable parent or a carer entitled to child support is aggrieved by any of the particulars of an administrative assessment. There are administrative pre- conditions to the exercise of the appellate right. ^[172] Assessment Act, s 110(1A).

128. Jurisdiction is conferred by the Assessment Act on the Family Court, the Federal Magistrates Court, the Supreme Court of the Northern Territory and State Family Courts, as well (subject to a disqualifying proclamation by the Governor-General) as courts of summary jurisdiction in each State which are vested with the necessary federal jurisdiction. ^[173] Assessment Act, s 99(1), (2) and (5). Such courts may make orders with retrospective effect. ^[174] Assessment Act, s 141(1)(h). They may set aside, confirm or vary the assessment of the Registrar. ^[175] Assessment Act, s 111. There are many avenues for challenge of the Registrar's decisions so as to submit these to scrutiny by courts of the Australian judicature, including, ultimately, this Court. ^[176] Assessment Act, s 129.

129. Lack of self-enforcement : The Registrar is not empowered to enforce his own

---

ATC 4332

assessments, another feature commonly regarded as characteristic of the exercise of judicial power. ^[177] Brandy (1995) 183 CLR 245 at 257, 268; see also Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 451 ; FC of T v Munro (1926) 38 CLR 153 at 176 ; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 198-199 ; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 408 . Instead, the Assessment Act provides that an amount of child support payable by a liable parent as a debt to the carer may be sued for, and recovered, in a court having jurisdiction under that Act. ^[178] Assessment Act, s 79. It follows that before any debt arising under the Assessment Act may be enforced by execution, there is interposed an ``independent exercise of judicial power''. ^[179] Brandy (1995) 183 CLR 245 at 261. This is the most significant difference between the legislation in the present case and the legislation that was declared defective in Brandy v Human Rights and Equal Opportunity Commission . ^[180] (1995) 183 CLR 245. In this case, the scheme of the Assessment Act does not purport to clothe the Registrar's determination of the rights and liabilities of the parties with characteristics that are binding, conclusive and immediately enforceable by him or her.

130. Discretion and administration : Nor do the departure determinations ^[181] Assessment Act, s 117. of the Registrar involve an impermissible exercise of functions reserved to the judiciary under Ch III of the Constitution. It would be a sorry day if the separation of the judicial power, required by Ch III, were construed to impose upon administrators an unyielding inflexibility so that they were unable, in accordance with law, to adjust their administrative determinations to the particular features of a given case. Flexibility and adaptability within a legal framework are common elements of good public administration. Nothing in Ch III of the Constitution forbids such powers to administrators. On the contrary, in my opinion, the Constitution envisages and supports these features of the executive power.

131. In a sense, the conferral of discretionary powers may reinforce, as it does in this case, the fact that the determination by the Registrar involves the creation or alteration of rights and liabilities for the future, rather than the conclusive determination of already existing rights characteristic of the exercise of the judicial power. Moreover, departure determinations are not finally binding or conclusive as such. Under Div 4 of Pt 7 of the Assessment Act, following the completion of specified administrative steps, ^[182] Assessment Act, s 116(1A), referring to s 98X. either a liable parent or a carer entitled to child support may apply to a court of competent jurisdiction for a ``departure order''. ^[183] Assessment Act, ss 115-118. In practice, the court hearing such an application engages in a rehearing of the question as to whether the provisions relating to the administrative assessment should be departed from. ^[184] In the Marriage of Perryman (1993) 17 Fam LR 200 at 206.

132. Further, determinations by the Registrar under Pt 6A of the Assessment Act are not immediately enforceable without an independent exercise of judicial power. These considerations, and a reflection on the features of the Registrar's powers under Pt 6A, reinforce the conclusion that, in the hands of the Registrar, such powers are administrative and not judicial in character. ^[185] The Registrar is not bound by the rules of evidence: Assessment Act, s 98H(4). The Registrar has power to carry out his or her own inquiry and investigation: s 98H(1)(b). The Registrar also has power to decline to exercise jurisdiction in complex matters: s 98E. The Registrar may replace an earlier departure determination: s 98J and may make such a determination on the Registrar's own initiative: Pt 6A.

133. Conclusion: no offence to Ch III : When all the features of the powers and functions of the Registrar under the Assessment Act are taken into account, it is clear that the drafter of the legislation has escaped the two perils mentioned by Fullagar J in Re Dymond . ^[186] (1959) 12 ATD 1 at 4; (1958-1959) 101 CLR 11 at 22. The ``Charybdis of s 55'' of the Constitution has been avoided by the design of the Registration and Collection Act. And the Scylla which ``might lie in wait in the shape of an argument [ of offence to]... the judicial power'' ^[187] Re Dymond; Ex parte The Debtor (1959) 12 ATD 1 at 4; (1958-1959) 101 CLR 11 at 22 . has been safely negotiated by the design of the Assessment Act with the respective functions conferred by it upon the Registrar and the courts.

134. It follows that the plaintiff's complaint that the judicial power of the Commonwealth was invalidly vested in the Registrar must also be rejected.

Orders

135. I agree with the answers to the questions reserved and the orders set out in the reasons of the other members of this Court. ^[188] Reasons of Gleeson CJ at [ 29], Gaudron and Hayne JJ at [ 78], Callinan J at [ 203].