House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Community Services, the Hon Larry Anthony MP)

Schedule 6 - Departure prohibition orders

Summary of proposed changes

This measure will set up a system of departure prohibition orders so that, in certain cases of a child support payer having persistently failed to meet his or her child support commitments, the payer may be prevented from leaving Australia without either discharging all debts or making satisfactory arrangements to discharge them. The system will mirror closely the existing departure prohibition order system in place under the Taxation Administration Act 1953 .

Explanation of the changes

Item 1 inserts after Part V of the Registration and Collection Act a new Part VA dealing with departure prohibition orders (DPOs).

Division 1 - Registrar may make departure prohibition orders

Division 1 allows the Child Support Registrar to make a DPO. New section 72D provides that a DPO may be made (in the approved form) to prohibit a person from leaving Australia if:

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the person has a child support liability (see new section 72E);

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satisfactory arrangements for the liability to be wholly discharged have not been made;

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the person has, in the Registrars opinion, persistently, and without reasonable grounds, failed to pay child support debts in relation to a child or children (any failure to pay child support debts in relation to a marriage is not taken into account); and

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in the Registrars opinion (on reasonable grounds), it is desirable to prevent the person from leaving Australia without either paying the debt in full or making satisfactory arrangements to do so.

In forming an opinion about whether a person has persistently, and without reasonable grounds, failed to pay child support debts of the type mentioned, the Registrar must have regard to certain matters. These are: the number of times a debt of that type has not been paid when due; the number of times that recovery action in relation to such debts has been taken, and the outcome of that action; the capacity of the person to pay such debts; and other appropriate matters.

New section 72E describes the child support liability that the person must have for the DPO provision to operate. Firstly, an amount must be payable under a registrable maintenance liability of a kind mentioned in section 17 (ie, in relation to a child or children, rather than in relation to a marriage). Secondly, that amount (which, under section 30, is a debt) must not have been paid, in whole or in part, even though the day when it was due and payable under section 66 has passed.

Division 2 - Offence provisions

Division 2 contains only new section 72F. This section provides that a person must not leave Australia if:

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a DPO is in force in respect of the person (and the person knows or is reckless about the existence of the DPO); and

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if the departure is not authorised by a departure authorisation certificate (DAC) (and the person knows or is reckless about the absence of a DAC).

If the person contravenes this section, he or she commits an offence that attracts a maximum penalty of 60 penalty units, imprisonment for 12 months, or both.

Division 3 - Administrative requirements

This Division sets out the administrative requirements surrounding DPOs.

Firstly, new section 72G stipulates that the Registrar must notify the person in respect of whom a DPO is made that the DPO has been made, and must do so in the approved form and as soon as practicable.

Secondly, the Registrar must give (as soon as practicable) a copy of the DPO to the Secretary of the Department of Immigration and Multicultural Affairs, along with information likely to enable identification of the person. However, this does not apply if the person is an Australian citizen. This provision is to enable the Secretary of that Department to establish whether a person in respect of whom the DPO has been made is also the subject of a deportation order under the Migration Act 1958 . Clearly, two such orders could not operate consistently - indeed, the deportation order would prevail (as provided by new subsection 72H(2)). The Secretary needs to know about a DPO to ensure that there is no confusion among enforcement officers as to which order prevails. However, since an Australian citizen cannot be deported, the Secretary does not need to know if a DPO is made in respect of a citizen.

Lastly, the Registrar must give (as soon as practicable) a copy of the DPO, along with information likely to enable identification of the person for the purposes of the new Part VA, to other appropriate people who fall within the range of people prescribed by regulation for this purpose. The people prescribed by subregulation 13(3) of the Taxation Administration Regulations 1976 (the equivalent to this regulation making provision) are: the Chief Executive Officer of Customs, the Commissioner of Police of the Australian Federal Police and the Secretary to the Department of Foreign Affairs and Trade. The intention is that the same people be prescribed for the purposes of new subsection 72G(5). The reason for not specifically listing these people within the primary legislation is that portfolio changes may require adjustments that would be more efficiently handled by regulation than by legislative amendment.

The reason for providing these people with the information outlined above is so that they may assist in enforcing the DPO to prevent the person concerned from leaving Australia.

New section 72H makes it clear that a DPO is in force from the time it is made until it is revoked, or until it is set aside by a court. However, as mentioned above, it is not in force during any period during which a deportation order is in force.

Under new section 72I, the Registrar is under an obligation to revoke a DPO if the person concerned has discharged the debt wholly, or has made satisfactory arrangements to discharge it wholly, or if the debt is completely irrecoverable (in the Registrars opinion).

However, even if this is the case, the Registrar must not revoke the DPO if he or she believes that the person may later become subject to a child support liability in respect of, or arising out of, matters that have occurred, unless satisfied that the liability will be wholly discharged, that satisfactory arrangements will be made for its discharge, or that it will be completely irrecoverable.

Apart from the obligation to revoke a DPO as described above, the Registrar has a discretion to revoke or vary it if desirable to do so.

Any revocation or variation under this section may be on application by the person or on the Registrars own motion.

Under new section 72J, the Registrar must notify the person concerned if the DPO is revoked or varied (whether on application or on the Registrars own motion). If the person had applied for a revocation or variation, the Registrar must also notify the person if he or she decides not to revoke or vary. Each person originally given a copy of the DPO (as described above) must also be notified if it is revoked or varied.

Any notice under the new section must be in the approved form and be given as soon as practicable.

Division 4 - Departure authorisation certificates

New section 72K allows a person in respect of whom a DPO is in force to apply (in the approved form) for a DAC.

New section 72L deals with when the Registrar must issue a DAC on an application by a person.

The Registrar must issue a DAC if satisfied that:

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if the DAC is issued, it is likely that the person will leave and return to Australia within an appropriate period; and

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within an appropriate period, it is likely that the circumstances addressed by new subsection 72I(1) in relation to the debt will apply to require the Registrar to revoke the DPO.

The Registrar must also be satisfied that it is not necessary for the person to give security for the persons return to Australia.

If this cannot be established, then the Registrar must, nevertheless, issue the DAC if one of two situations exists. Either security must have been given under new section 72M or, if the person is unable to give such security, the Registrar must be satisfied that humanitarian grounds suggest that the DAC should be issued or that Australias interests would be damaged by refusal to issue the DAC.

New section 72M provides that a person may give security, by specified means, for the persons return to Australia by an agreed day that is specified in the DAC. A later day may be specified (either on application or on the Registrars own motion). However, in the case of an application, the Registrar may refuse to substitute a later day if the person refuses to increase the security appropriately, or to give appropriate further security, or if the Registrar generally considers it inappropriate to exercise the discretion.

As provided by new section 72N, the DAC is to authorise the person to leave Australia on or before the seventh day after a day specified in the DAC. That day must be after, but no more than 7 days after, the DAC is issued.

The Registrar must, under new section 72O, notify the person concerned (in the approved form and as soon as practicable) after making a decision about an application for a DAC. If the decision is to issue a DAC, the DAC must be copied to each person to whom the DPO was copied.

Under new section 72P, an application to have a later day substituted must be answered, as soon as practicable, with a notice about the Registrars decision on the application. If the Registrar substitutes a later day on his or her own motion, the person concerned must be notified as soon as practicable. If a later day is substituted, the Registrar must also notify each person to whom the DPO was copied.

Division 5 - Appeals and review in relation to departure prohibition orders and departure authorisation certificates

As stipulated by new section 72Q, there is generally (subject to Chapter III of the Constitution and section 9 of the Administrative Decisions (Judicial Review) Act 1977 ) access to the Federal Court to review the making of a DPO.

New section 72R addresses aspects of the jurisdiction of the court. New section 72S relates to orders of a court on appeal.

New section 72T makes it clear that the Administrative Appeals Tribunal may review the specified decisions under the new Part VA. However, as provided by Part 2 of Schedule 6 to the Bill, should the changed administrative law arrangements commence before this Schedule, the relevant appeal body will be the Administrative Review Tribunal.

Division 6 - Enforcement

Under new section 72U, authorised officers (see new section 72X) may do the specified things if reasonably satisfied that a person in respect of whom a DPO is in force, but no DAC is applicable, is about to leave Australia. The specified things are aimed at preventing the persons departure, and include the requirement to answer questions or produce documents for relevant purposes. As provided by new section 72V, the requirement to answer questions or produce documents in this way overrides the common law privilege against self-incrimination. However, the use of incriminatory information against the person in proceedings other than under subsection 72U(5) itself will be prevented. This is in keeping with accepted Commonwealth criminal law policy.

Refusal or failure to comply with a requirement to answer a question or produce a document (to the extent specified) is an offence, attracting a penalty of 30 penalty units. Knowingly making a false or misleading statement in this connection is also an offence, attracting a penalty of 30 penalty units, imprisonment for 6 months, or both.

New section 72W requires a person in respect of whom a DPO is in force, a DAC is applicable, and who is about to leave Australia, to produce the DAC to an authorised officer if required to do so. Otherwise, an offence will be committed, attracting a penalty of 5 penalty units. Strict liability under the Criminal Code applies to this provision, rather than fault elements applying to all physical elements of the offence. This is 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 (only 5 penalty units); and

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the fact that the offence does not involve dishonesty or other serious imputation affecting the persons reputation.

Division 7 - Definitions etc.

New sections 72X and 72Y provide necessary interpretative rules.

This measure commences on Royal Assent.