VOUlHE 6

CIJILD SUPPOllT 1987to CIVIL AVIATION IIMEND{ENl' 1989

amn SUP'I'{Rl' 1987lis read 10Explanatory MeTorarrlum

~ .....-:, T.it:.1e changed to Child SUwort 1988

OIIID SUPPCRl' J\MIHIIIEH'l' 1988lis read 10

Explanatory MeToran::turn

OIIID SltPiQtt (ASSESSMENl') 1989lis read. 10

lis read. 30

P=posed ~rnllel""''''''let~lts and. new clauses by Govel:nIrentK3r0rand.um shcMi.ng bill as intrcduced and. as pl:OpjS€d to be

anended by GovemrrentA:k:litional am=rIdroon.t by GovernnentProp:>sed. aInelrlnent by Me!Jt:erProI;:osa:i arrerdrTEnts and. new clauses by Melt::erSchedule of~t by senateExplanatory~Replacerrent Explanatory Matorand.umCOrrection to Replacerrent Explanatory Matorand.umExplanatory Merorand.um i.ncoJ:porating arrendrrents IMde by

House of RepresentativesSUR;llarentary Explanatory HB1Drand.umCOrrection to SIJWlerrentary Explanatory Memrandum

CIIlClJIT IAmJl'S 1988lis read 1°Schedule of arrendrrent by senateExplanatory Marorand.um

CIVlL AVIATIQi 1988lis read 10Schedule of arrendrrents by SenateExplanatory Marorand.um

CIVIL AVW'IQi 1lMI!2U!ENr 1989lis read 10ExplanatOIy Malnrand.um

1987

THE PARLIAMENT OF THE COMMONWEALTHOF AUSTRALIA

HOUSE OF REPRESENTATIVES

CHILD SUPPORT BILL 1987

EXPLANATORY MEMORANDUM

(Circulated by authority of theMinister for Social Security,

the Hon. Brian Howe, M.P.)

16186/87 Cat NQ. 87 5369 3

GENEML OUTLINE

This Bill provides for the collection of certainperiodic child and/or spousal maintenance payable undercourt orders and maintenance agreements.

Its provisions contain measures for 1

the establishment of a Child Support Register tobe administered by the Child Support Registrar(the Commissioner of Taxation);

the creation of a child support debt wherebyperiodic child and/or spousal ~intenance,

formerly payable by a payer to a payee under anorder or agreement, becomes a debt due by thepayer to the Commonwealth;

the termination of a liability of a payer to payfuture periodic maintenance to a payee named in acourt order or maintenance aqr~nt and theremoval of any entitlement of the payee to enforcethat debt:

as far as practicable, the collection of periodicchild and/or spousal maintenance by means ofautomatic withholding (deductions) from the salaryor wages of employees - these provisions are basedclosely on the existing PAYE provisions of theIncome Tax Assessment Act 1936;

the collection of periodic child and/or spousalmaintenance by means of direct remittance on amonthly basis by the payer where automaticwithholding does not or cannot apply:

pa~nt of maintenance collected by the ChildSupport Registrar to payees - this will be done bythe Secretary to the Department of Social Security;

recovery of maintenance that becomes unpaid onlyduring the time the liability is payable to theCommonwealth l

penalties for employers and payers for variousoffences such as the late payment of maintenance,failing to provide info~tion to the R89istraretc.; and

objection and appeal rights for parties affectedby the liability to the Commonwealth.

,.FINANCIAL IMPACT

The effect on revenue of these measures when takentogether with the proposed changes to the Social SecurityAct 1947 were estimated for 1987-88 Budget purposes to benet gains of 57.6H in 1987-88, S120.0M and 5192.8H in1988-89 and 1989-90, respectively. These estimates may besubject to revision, if there is a variation in theproposed implementation timetable.

MAIN FEATURES

The Child Support Bill 1981 is part of a packageof three BIlls which, when taken together, will reformAustralia's current system of child maintenance. One ofthose Bills, the Family Law Amendment Bill 1981, has beenintroduced into the Parliament. Related amendments to theSocial Security Act 19.' are expected to be introduced inthe first sittings of the Parliament in 1988.

The overall objectives of the reform are to ensurethat

non-custodial parents share the cost of supportingtheir children, according to their capacity to pay;

adequate support is available for children ofseparated parents;

C~nwealth expenditure is It.ited to what isnecessary to ensure that those needs are met;

neither parent is discouraged from participatingin the work force; and

the overall arrangements are simple, flexible andrespect personal privacy.

Ex-nuptial and step children are subject to thedifferent State maintenance laws - the Commonwealth'spowers under the Constitution are unclear in relation tothese children. However, the States of New South Wales,Victoria, South Australia and Tasmania have referred theirpowers on the matter to the Commonwealth. The Family LawAmendment Bill 1981 (referred to earlier) will amend theFamily Law Act 1975 to implement these references of powerand also deals with the criteria for assessment ofmaintenance in the Social Security system.

The main features of the Child Support Bill 1987are as follows ;

3.

Registration of maintenance liabilities(Clauses 17 to 42)

To enable the Commonwealth to collect periodicmaintenance payable under the terms of a court order ormaintenance agreement, the Bill proposes the establishmentof a Child Support Register to be administered by the ChildSupport Registrar (who will be the Commissioner ofTaxation).

The Registrar will be empowered to enter child andspousal support obligations, created by court orders oragreements, on to the Child Support Register. Entry of theobligation will have four effects :

it will create a liability to pay the amount tothe Registrar as a debt due to the Commonwealth;

it will extinguish the liability of the payer topay directly to the payee or through a State orTerritory based collection system;

it will create an entitlement of the payee toreceive the -aintenance from the Registrar, whichwill be done, in practice, by the Department ofSocial Security; and

the payee will relinquish any rights orentitlements he or she had under the order oragre~nt to receive periodic maintenance from thepayer.

This will be achieved by creating registrablemaintenance liabilities in relation to children (childmaintenance) and parties to a .arriaqe (spousalmaintenance) .

The provisions of the Bill are drafted in such away that all periodic maintenance orders and agreements,including ones In respect of ex-nuptial children in theStates that have not referred their powers, may becomeregistrable ~intenance liabilities provided thosenon-referring States pass a law that corresponds closely tothis Bill.

Under the Regulations, it is possible to excludespecified liabilities or liabilities of a specified class.It is intended that this exclusion power will be used torestrict the collection of child maintenance to the typesannounced by the Minister for Social Security in hisstatement of 24 March 1987.

••

Broadly speaking, the Registrar will be authoriSedto collect periodic amounts payable under all orders andmaintenance agreements that relate to children of parentswho separate after the commencement of this BIll, or _where the parents have not co-habited - to children born!fter that date. Where the payee Is in receipt. of an~ncome tested pension, allowance or benefit, the Registrarwill be able, upon application, to collect the maIntenancewhether the child was born before or after the commencementof this Act.

In his statement, the Minister for Social Securityalso proposed that, where a child maintenance order oragre7ment has been lodged tor collection with a State orTerr~tory collection agency (including a court),maintenance will be collected by the Registrar. This willnow extend to spousal maintenance orders or agreementslodged for collection with such an agency. To enable allthese cases to be transferred to the Register, the Billprovides for formal arrangements to be entered into betweenthe Governor-General and the Governor of a State or theAdministrator of the Northern Territory or Norfolk Island.In respect of other Territories (in~luding the AustralianCapital Territory>, the Registrar may make arrangements forthe transfer directly.

Other categories of orders and agreements may bee~cluded by regulation. For e~ample, it is expected thatcertain classes of spousal maintenance will be excluded inaccordance with the announcement of the rules for theextension of the Scheme to spousal maintenance onintroduction of this Bill in the Parliament. Spousalmaintenance will also be collectable where there is a childmaintenance liability, or the person is over the age of 45and in receipt of an income tested pension, allowance orbenefit.

The Bill also provides for the payee to ·opt-out­of the Child Support collection system provided he or sheis not in receipt of an income tested pension, benefit orallowance. However, in such a case the payee may apply tothe Registrar for the liability to again beco~ enforceableunder the Act should the payee so wish.

The Bill also places responsibilities on payersand payees to notify the Registrar when a registrablemaintenance liability arises. The payee must also notifythe Registrar of any variations to orders or the happeningof certain events that could affect the registrablemaintenance liability. For example, the adoption ormarriage of the child would generally terminate the

s.liability. In order to encourage c~pliance with theseresponsibilities, penalties are provided for by the Bill.

Collection by deduction from salary or ~qes

(Clauses 43 to 65>

Autauatic withholding is based broadly on thelegislative approach set out in the Income Ta~ AssessmentAct 1936 for deductions of ta~ instalments from the salaryor wages of employees. The Bill provides for automaticwithholding from salary or wages to be the mechanism usedfor collection of periodic maintenance wherever this ispracticable. An employer will be directed by the Registrarto deduct a fi~ed amount from each pay in respect of eachspecified employee. The employer will then be required toremit the total of amounts deducted from employees' pays tothe Registrar no later than the seventh day of each monthfollowing the month in which deductions were made.

The Bill also provides for a payer to =akeapplication to a court for an order that automaticwithholding apply on the grounds of personal privacy. Ifthere are special circuastances in a particular case, acourt may, by order, direct that automatic Yithholding isnot to apply on the grounds of personal privacy, providedit is satisfied that the payer would be likely to makeregular and timely payments to the Registrar.

Automatic withholding Yill also not apply in aparticular case where the Registrar is satisfied that itwould not be an efficient method of collectingmaintenance. An example could be the case of an itinerantworker.

Where automatic withholding is not being appliedand the payer fails to make regular and timely .aintenancepayments to the Registrar, automatic withholding yillbeco~ manditory provided the Registrar is satisfied thatit is an efficient ~thod of collecting ~intenance in thatparticular payer's case.

A protected earnings component is built into theautomatic withholding provisiQns in order to leave thepayer and his immediate family (if anyl Yith sufficientearnings for their self support before the employercommences to deduct the amount of the registrablemaintenance liability. The protected earnings componentdoes not absolve the payer from his or her liability andthe amount owing that cannot be discharged by automaticwithholding must be paid directly to the Registrar by thepayer on a monthly basis.

••The Bill imposes a number of obligations on

employers such as forwarding with their monthly remittance,a remittance advice. The obligations are similar to thoseplaced on group employers by the Income Tax Assessment Actlili. and as with those provisions, penalties are providedfor where an employer contravenes his or herresponsibilities under the 8ill.

A specific penalty of a fine not exceed.!n; 52000is provided for by the Bill in the event that an employerprejudices any employee who is liable to pay maintenance tothe Registrar - for example, by dismissing or threateningto dismiss an employee. In such a case, the employee'Sright to compensation is also provided for.

Reflecting one of the objects of the Bill _privacy - employers also have an obligation not to discloseto a second person, any information in relation to a thirdperson except in connection with the carrying on of theemployer's affairs.

Coll,ction of ~intenance other than by deduction fromsalary or wages(Clauses 66 to 72)

Payers who are responsible to pay theirmaintenance direct to the Registrar e.g., self-employedpersons, are required to remit the amount due in a calendarmonth so it is received by the Registrar by the seventh dayof the following month. A penalty i8 provided to encourageregular and timely r~ittances from payers.

Pa~ents to payees(Clauses 76 to 79)

Provision is made in the Bill for payees to bepaid the maintenance collected on their behalf on or beforethe first Wednesday following the end of each month.

Where the Registrar is satisfied that amaintenance deduction has been made by an employer from apayer's salary or WAges and the employer has failed toremit the deduction, an amount equal to the amount deductedbut not remitted is payable to the payee from consolidatedrevenue.

Where an unexplained shortfall in a remittance isreceived from an employer and the Registrar is unable todetermine the amounts attributable to each of the employeeswho are payers, the Registrar will be required to apportionthe total amount received between each of the variOuspayees. However, the Bill provides for an amount to be

7 .

appropriated from consolidated revenue in order to make upthe shortfall - provided the amount required does notexceed an amount to be prescribed by Regulation. It isexpected, therefore, that in the majority of cases whereshortfalls occur, there will be no need for the Registrarto apportion short remitted amounts among the variouspayees.

Tryst Accoynt(Clauses 73 to 75)

Th, Bill requires a Child Support Trust Account tobe established in order to ensure strict accountingcontrol. To this end, the Trust Account will be a trustaccount for the purposes of section 62A of the Aydit ActliQl. All payments received by the Registrar in the natureof maintenance and amounts appropriated from consolidatedrevenue will be paid into the Trust Account. Moneystanding to the credit of the Trust Account may be appliedin making payments to payees and in repaying consolidatedrevenue after the conclusion of recovery action.

Review of decisions(Clauses 80 to 103)

Other than decisions on remission ofadministrative penalties by the Registrar, any decision ofthe Registrar will be subject to appeal or review throughthe Family Court system. That system will ensure thatparties have complete rights to challenge in the courts anyfindings of fact or any decision on the law by theRegistrar. It also ensures that decisions on the effect ofa court order will be decided in the court systeM which wasresponsible for making the order and will be subject to theprotection for individuals privacy provided for by thatcourt system. Review of a~ini8trative penalties will bethe responsibility of the Administrative Appeals Tribunal.The principal reason tor adopting this approach isessentially that maintenance is a family law matter andshould be reviewed in that jurisdiction.

Jurisdiction of courts<Clauses 104 to 1101

The Bill also confers on those courts whichcurrently exercise jurisdiction under the Family Law Act

e.jurisdiction in relation to applications that automaticwithholding not apply on the grounds of personal privacyand in relation to appeals against certain decisions of theRegistrar, notably thoBe relating to entries in the ChildSupport Register. ThOBe courts are the Family Court ofAustralia, the Family Court of Western Australia, theSupreme Court of the Northern Territory and the courts ofsummary jurisdiction of the States and Territories.

A acre detailed explanation of the prov1s1ons of theBill i. contained in the following notes.

,.CHILO SUPPORT BILL 1987

PART I - PRELIMINARY

Clause 1 : Short title

This clause provides for the Act to be cited asthe Child Support Act 1987.

Clause 2 : Commencement

But for this clause, the Act would by reason ofsubsection S(1A) of the Acts Interpretation Act 1901, comeinto operation qn the twenty-eighth day after the day onwhich it receives the Royal Assent. The clause provides,however, for the Act to come into operation on a day to befixed by Proclamation - proclaM4tion means, of course,procla=ation by the Governor-General published in theGazette <paragraph 11<j) of the Act, Interpretation Act!2Q1). It is expected that a day will be proclaimed assoon as practicable after the Royal A••ent to the Bill.

Clause 3 : Objects of Act

Section lSAA of the Acts Interpretation Act 1901provides that where a provision of an Act is capable ofmore than one construction, the construction that wouldpromote the purpose or object of the Act is to be preferredto one that would not promote that purpose or object.

This clause i. a ,tatutory declaration, althoughnot exhaustive, of some of the objects of this Bill.

Subclause 3<11 describe. two principal objects ofthe Bill both of which essentially concern the children ofparents who are separated. The Bill seeks to ensure thatwhere parents are liable to provide financial support fortheir children e.g., under a court order for payment ofchild maintenance, that the children actually receive thatfinancial support - paragraph lal. Moreover, the Billagain seeks to ensure that the requisite payments are madeon a "regular and timely· basis - paragraph (b).

Subclause (2) of this clause demonstrates theintention of the Parliament that recognition be given, inboth the administration of the Bill by the Child SupportRegistrar and the interpretation of the provisions of theBill by the courts or the Administrative Appeals Tribunal,to the need to protect individuals rights to privacy.

10. 11.

However, those rights are, by virtue of this subclause,subject to the overall need to ensure the attainment of theobjects of the Bill.

Clause 4 Interpretfttion

enforcement of that liability. Separateprovisions of the Bill provide for information 11'1relation to such court orders or aqree~ents to beprovided directly to the Registrar : see notes onclause 112.

This clause is an interpretative provision which _

ascribes particular meanings, unless the contraryintention appears, to words and expressions usedin the Bill (subclause Ull; and

contains a number of other measures to assist inits interpretation (subclauses (2), (3) and (4».

Subclause 4(1) contains the following definitions,each of which is to have its qiven meaning, unless thecontrary intention appears.

"affecting event W is defined in relation to anenforceable maintenance liability : see laternotes in this subclause on that expression. Asthe name suggests, an affecting event is any eventwhich, once it occurs, affects or varies anenforceable maintenance liability or theparticulars concerning such a liability that areincluded in the entry in the Child SupportRegister in relation to that liability. Theaffecting event must, however, be provided forunder the terms or conditions of the court orderor maintenance agreement that gave rise to theenforceable maintenance liability or otherwise byforce of law.

A Terminating event, which is also a defined ter;lll(see later notes in this subclause) is includedwithin the meaning of the term "affecting event".

The definition of waffecting event W specif~callyexcludes -

orders made in, or registered by, a court(paragraph IAI of the definition); or

~intenance agreements registered in, orapproved by, a court (paragraph lb) of thedefinition) .

Under the provisions of the Bill, a court order orregistered maintenance agreement will operate morebroadly than an affecting event in that either ofthe former can go to the heart of a registrablemaintenance liability i.e., before registration or

-appealable refusal decision- is an expression whichcovers certain decisions made by the Child SupportRegistrar which, following the usual considerationon objection by the Registrar, may be referred toa court having jurisdiction under this Bill. Thekinds of decisions of the Registrar covered bythis expression are -

a ~ecision to refuse to register aregistrable maintenance liability (paragraph~ of the definition);

a decision to refuse to vary a particular orparticulars in the Child Support Register(paragraph (b) of the definition);

a decision not to allow credit for an amountagainst a liability under the Bill to theCommonwealth e.g., ex-gratia pa~nts

("Fagraph (C) of the definition) I

a decision of the Registrar to disallow inwhole or in part an objection undersubclause 87(1) I see notes on that subclause(paFagraph ld) of the definitionl; or

a decision of the Registrar that results in aChild Support debt remaining uncollected,broadly, for more than 6 months (paragraph~ of the definition).

"Australia W is, by this definition, to be given a widermeaning when used in the Bill in a geographicalsense than would otherwise by the case. When usedin a geographical sense, 'Australia' does notinclude an external Territory - peragraph l7la) ofthe Acts Interpretation Act 1901. Thisdefinition, however, overrides the meaning in thatAct by specifically including the externalTerritories i.e., a Territory other than theAustralian Capital Territory, the Jervis BayTerritory or the Northern Territory, for thegovernment of which aa a Territory provision iamade by an Act - paragraph l7(pd) of that Act.

12.

·child of a marriage" is to have the same meaning asthat expression has in Part VII of the Family LawAct 1275. Put broadly, the expression followssection 60A of that Act which defines certainchildren of a marriage for the purposes of PartVII of that Act. This definition includes as achild of a marriage, a child adopted since themarriage by the husband and wife or by either ofthem with the consent of the other.Correspondingly, a child of a marriage who isadopted by a person who is not a party to themarriage ceases to be a child of the marriage.

·child support debt" is, 1n relation to a registrablemaintenance liability, essentially the debt due bya payer to the Commonwealth in accordance with theliability entered in the Child Support Register.It is important to note that under ~lause ]0 ofthe Bill, from whi~h this definition obtains itsmeaning, the payee under that liability is notentitled to, and ~y not enfor~e payment of;-thoseamounts: see also notes on ~lauae ]0 of the Bill.

"child support enforcement period", which is defined inrelation to a registrable maintenance liabilitylsee notes on clauses 17 and 181 that isregistered, means -

where the liability becomes enforceable forthe first time - the period ~omMencing on theday the liability be~omes enfor~eable andending on the day on whi~h the liabilityceases to be so enfor~eable (paraq~Aph (a) ofthe definition); and

where the liability becomes enforceable for asecond or subsequent time - each periodcommencing on a day the liability againbecomes enforceable and ending on the day onwhich the liability next ceases to be 50enforceable (paragraph (bl of the definition).

When read together, the effect of paragraphs (a)and (b) of the definition is to provide for oneperiod in relation to a registered maintenanceliability during which amounts payable under theliability are child support debts i.e., broadly adebt due to the Commonwealth. That one statutoryperiod may, however, under this definition,consist of several actual periods.

13.

·Child Support Register" is the official title to begiven to the Register, that is established byclause 10 of the Blll, in which to record detailsof registrable malntenance liabilities : see alsonotes on clause 10 of the Bill.

·closing day· is a drafting device to ensure that, inrelation to anyone calendar month there is aparticular day, rather than date, which can bedetermined by the Registrar for the purpose ofdetermining which payments received in relation toenfor~eable maintenance liabilities can be paid tothe relevant payees. Initially, that day, inrelation to a calendar month, will be the day 9days ~fore the first Wednesday in the followingmonth. Por example for the month of March 1988,the closing day would be Monday, 22 February1988. When read in conjunction with theprovisions of Division 2 of Part VI of the BillPayments to Payees - the definition establishes apayment period in relation to each calendar monththereby quaranteeing payment to payees of amountsreceived by the Registrar during that period.

·collection agency ~iDtenanc. liability· is defined inrelation to a State or Territory. Put simply,this definition identifies a particular class ofliabilities that the Registrar will be entitled toenforce under the Bill. They a.re certainliabilities that are presently

being collected; or

lodged for collection but are not beingenforced,

with various State or Territory collectionagencies or systems. Negotiations will be enteredinto with the States or Territories to provide forthe continued collection of the8e liabilities bythe Registrar: see also notes on clauses 20, 21and 22.

Paragraph (al of the definition describes theparticular liabilities covered as -

child maintenance payable by the ~hild's

parent (subparagraph (a)(i»);

child maintenance payable by a step-parent ofthe child (subparagraph la/(iil); or

.4epousal maintenance, but only in relation toa party to a marriage (subparagraph(a)(iil1). In other words, de facto spousemaintenance, if currently beinq collected bya State or Territory collection agency orsystem, will not be able to be collected bythe Registrar.

Paragraph <bl of the definition describes thestatus of the liability with the particular Stateor Territory agency or system, income that thatliability may be collected by the Registrar.Naturally, a liability of a kind referred to inparagraph (a) will be able to be collected if itis presently being collected by such an agency orsysten. However, a number of these liabilitiesare lodged for collection with such agencies orsystems but, for various reasons, have been unableto be enforced. These liabilities will not,however, be precluded from collection by theReqistrar, but will be enforced on application bythe payee.

"Co~issioner" is a drafting device to shortenreferences in the Bill to the CommiSsioner ofTaxation.

~company" is defined to include any corporate orincorporated body or association, but not apartnership.

~coyrt order" must be read in conjunction with thedefinition of "order" : see later notes in thissubclause. The term 'court order' is defined invery broad terms to mean an order -

made by, or registered in, a court undereither the Family Law Act 1975, theMatrimonial Causes Act 1959 or the law of theState or Territory (paragraph (al of thedefinition); and

that has not been set aside, discharged andhas not expired or otherwise ceased to be inforce <paragraph (bl of the definition).

These orders are one of the principal sources ofregistrable maintenance liabilities that arelikely to be enforceable under the Bill.

.s.'court registered maintenance aareement" relies in

part for its meaning on the term maintenanceagreement ; see later notes on this subclause.Essentially this expression means a maintenanceagreement that has been -

registered in, or approved by, a court underthe Family Law Act 1975 (subparagraph (4)(1)of the definition);

sanctioned by a court underparagraph 87(1l(kl of the Matrimonial CausesAct 1959 (subpgragraph (al(iil of thedefinition) I or

r~istered in, or approved by, a court underthe law of a State or Territory(subparagraph (al(iii» of the definition).

To be accepted as a court registered maintenanceagreement, the agreement must also not have been

set aside, expired or otherwise ceased to bein force (paragraph (bl of the definition I I or

in a case where the agreement was registered,approved or sanctioned - revoked orcancelled, or otherwise ceased to be in force(paragraph (C) of the definition).

These agreements are the other principal source ofregistrable maintenance liabilities that may beenforceable under the Bill.

"decree~ is defined to have the same meaning as inthe Family Law Act 1975. In that Act, a decreemeans decree, judgment or order, and includes adecree n1si and an order dismissing an applicationor refusing to make a decree or order.

"Deputy Commissioner" is defined to mean the DeputyCommissioner of Taxation and when used in the BillavoidS references (if possible) to the longerexpression.

"Deputv Reaistrar" is to mean a Deputy Child SupportRegistrar. Again the expression is draftingdevice to avoid references throughout the Bill tothe longer expression.

16.

"employee" is defined to have the So!lme meaning asthat word has in Division 2 of Part VI of theIncome Tax Assessment Act 1936. Essentially, anemployee is someone who receives "salary or wages·(see also notes on that expression in thissubclause>, In this Bill, an employee will alsoinclude a member of the Parliament of a State anda person employed by a State or an authority of aState, whether or not the Governor-General hasentered into an arrangement in accordance withsection 2215 of that Act.

~employer" is defined to have the same meaning asthat word has in Division 2 of Part VI of theIncome Tax Assessment Act 1936. Put simply, anemployer is a person (including a company and apartnership) that pays "salary or wages" (see alsonotes on that expression in this subclause). Inthis Bill, an employer will also include aState and an authority of a State, whether or notthe Governor-General has entered into anarrangement in accordance with section 2215 ofthat Act.

"enforceable maintenance liability" is central to theoverall operation of the 8ill. It is defined as aregistrable maintenance liability that isenforceable under the Bill. When read with clause30 (see notes on that clausel, this expressionestablishes the debt due to the Commonwealth undera registrable maintenance liability.

"Family Court" is a drafting device to shortenreferences in the Bill to the Family Court ofAustralia.

"Family Court of a State" is defined to mean a courtto which section 41 of the Family Law Act 1975applies. Briefly stated, that section providesfor the establishment of State Family Courts, suchas the Family Court of Western Australia.

"Family Law Act 1975", when used in provisions ofthis Bill will include, by definition, referencesto the regulations and Rules of Court made underthat Act.

"Full Court" has the same meaning as that term has inthe Family Law Act 1975. Broadly put, a FullCourt means 3 or more Judges of the Family Courtsitting together where a majority of those Judgesare members of the Appeal Division.

17.

"aovernment body" is defined to mean the Commonwealthand its authorities as well as a State orTerritory or an authority of a State or Territory.

"income tested pension. allowance or benefit" isdefined-to have the same meaning as proposed inthe Family Law Amendment Bill 1987. In that Act,the expression is defined as a pension, allowanceor benefit included in a class of pensions,allowances or benefits prescribed for the purposesof that definition in subsection 4(1) of that Act.

"Judge" is to mean a Judge of the Family Court andincludes the Chief Judge or a Senior Judge. Theterm is. defined in order to avoid the need in theBill to refer to the extended expression.

"maintenance agreement" is a term used to describe awritten agreement that provides for themaintenance of a child or a party to a marriage(also a defined term). The agreement may vary anexisting agreement and may also make provisions inrespect of other matters. It is immaterialwhether it is made in Australia or overseas. Theterm is complementary to the definition of "courtregistered maintenance agreement" (see earliernotes on that expression).

"Matrimonial Causes Act 1959" is given an extendedmeaning to include the rules made under that Act.This Act immediately preceded the Family Law Act~.

"modifications" is defined to include additions,omissions and substitutions. The definition makesit clear that when the Regulations prescribemodifications of this Act in relation to externalTerritories and foreign countries, a wideinterpretation is to be given to the word.

"~" is defined to include an order made under thelaw of a foreign country and an interim order(whether made in Australia or overseas). The termis complementary to the definition of "courtorder" (see earlier notes on that definition).

~party to a marriage" is given the same meaning as inPart VIII of the Family Law Act 1975. Part VIIIof that Act deals with property, spousalmaintenance and maintenance.

1'. 1•.

~~. in relation to a "registrable maintenanceliability· (4 defined tera) means the person who1s to receive payments in relation to theregistrable maintenance liability.

"Registrar", when used in this Bill, means the ChildSupport Registrar. Clause 10 of this Billprovides that the Commissioner of Ta~ation shallbe the Registrar.

~payer" correspondingly means the person who 18liable to make payments in relation to aregistrable maintenance liability.

"Rules of Court" Is given the same meaning as insection 123 of the Family Law Act 1915 (see alsothe notes on the definition of that Act).

"Secretary" will mean the Secretary to the Departmentof Social Security.

"Second Commissioner" will mean a Second Commissionerof Taxation.

·step-~rent· is defined to have the same meaning .sin Part VII of the family Law Act 1975.Step-parent is defined in that Part so that theliability for the payment of maintenance bystep-parents only arises in respect of astep-parent who is or has been married to a parentof the child pnd who treats or has treated thechild as a member of the family formed with thatparent.

"salary or wages" is defined to mean salary or wagesfor purposes of the PAYE provisions of the IncomeTax Assessment Act 1936, other than payments of anincome tested pension, allowance or benefit (adefined term) or payments prescribed under theRegul~tions. The Regulations ~y also prescribeadditional payments that can be included in thedefinition such as income in the nature of salaryor wages, but which is, for example, exempt "fromincome tax. Essentially, the definition of salaryor wages can cover all payments made by anemployer to an employee (see earlier notes) andincludes any commission, bonuses, allowances,superannuation and pension .

weekly raterateof salary orwithholding

The purposeto ensureearnings forfamily (if

"protected earnings rate" is to mean aprescribed in the Regulations. Theprescribed will represent an amountwages that is exempt from automatic(see notes on Part IV of the Bill).of a protected earnings component isthat a payer is left with sufficienthimself or herself and the immediateany).

"periodic amount" is an amount to be paid weekly,monthly, annually or at other periodic intervals.The tera 1s crucial to the administration of theChild Support Scheme as only periodic amounts of.aintenance are capable of being collected by theChild Support Registrar.

"person", for the purposes of the Bill, includes anybody or association, corporate or unincorporate.

"registered maintenance liability· is defined to meana registrable maintenance liability (see notes onnext definition) which may be registered underclause 22, 24 or 25 of this Bill.

"registrable maintenance liability" is defined tomean a liability that under clause 17 or 18 ofthis Bill is a registrable maintenance liability.To be registrable, the liability must arise undera court order or court registered maintenanceagreement (defined terms) or be a collectionagency maintenance liability (also a defined term): see earlier notes on those definitions. Theliability must also be of:

• parent or step-parent of • child to pay aperiodic amount for the maintenance of thechild - child maintenance, or

a party to a marriage to pay a periodicamount for maintenance of the other party tothe marriage - spousal maintenance.

20.

"terminating event" is defined in relation to aregistered maintenance liability that isenforceable. As such, a terminating event canonly have effect in relation to an enforceablemaintenance liability. The definition describes anWllber of events which, os the name auqqe8ts, willstatutorily operate to cease liability. They are

the payer's death, unless, of course, there1. a legal liabilitr under the order,agreement or othe:rw1.sQ by force of law, thatliability should continue (paragraph (4) ofthe definition).

the death of the person to whose mointenancethe liability relates e.g., the child or thespouse (paragraph <b) of the definition);

in the case of child maintenance thefollowing events - '

the eighteenth birthday of the child(subparagraph (C) (i) of the definition);or

the adoption or ~rriage of the child(subparagraph (C) (ii) of the definition).

Both of the above events described in respectof child maintenance are also expressed to besubject to the terms and conditions of theorder or agreement or otherwise by the forceof law;

in the case of spouse maintenance (excludingde facto spouses), the relllarriage of therelevant person <paragraph <d) of thedefinition). Again this event may beoverriden by the terms of the relevant orderor agreement or otherwise by force of law; or

generally by the happen~ng of !lny eventother than an event described in paragr~phs(a) to (d) inclusive, which operates to endthe liability, either under the terms of theorder or agreement or otherwise by force oflaw (paragraph (e) of the definition).

21.

As was the case with "affecting event", whichincludes a terminating event, a court order oragreement that is registered in, approved by, orsanctioned by a court as the case may be, is nottaken to be a te~lnating event. This is becausecourt orders or agreements apply more generally inrelation to registrable maintenance liabilities.

~thi5 Act" is a drafting device which when used in aprovision of the Bill can, unless the contraryintention appears, include Regulations made underthe Bill.

~transferred -aintenance liability~ is a liabilitywhich ls the result, essentially, of arrangementsmade under clause 20 or 21 of the Bill (see noteson those clauses) for the transfer to the ChildSupport Register of a ~collection agencymaintenance liability" : see also notes on thatdefinition.

·Tribunal~ when used in any provision of the Billrefers, by definition, to the AdministrativeAppeals Tribunal.

"Trust Accoynt" is the shortened reference used invarious provisions of the Bill for the ChildSupport Trust Account, the establishment of whichis provided for by clause 73 of the Bill (see alsonotes on that clause).

~trustee~ ia defined to include the following -

a person made a trustee by consent, courtorder, or operation of law <paragraph (a»;

an executor, or administrator or otherpersonal representative of a deceased person<par!lgraph (b I ) ;

a guardian or committee (paragraph (c)l;

a receiver or receiver and manager (paragraph1&1.) ;

an official manager or liquidator of acompany (paragraph (e); or

22.

Gny person who

has taken on the administration orcontrol of property affected by anyexpress or implied trust;acts in a fiduciary capacity; orhas the possession, control ormanagement of property of a person undera legal disability (pAragraph Ctl).

"~" is g~ven a more expanSive meaning, when used1n relat10n to particulars entered in the ChildSupport Register than might otherwise be thecase. Vary includes

23.

not be a registrable maintenance liability e.g., aliability wrongly entered in the Child Support Register(see also notes on clause 40 of the Bilil.

The Commonwealth's constitutional power ipmarriage tplacitum Sl(xxilJ and matrimonial causestplacitum Sl(xxiv» in relation to children is confined tochildren of a marriage. Four States - New South Wales,Victoria, South Australia and Tasmania - have enactedlegislation referring power. to the Commonwealth Parliamentin respect of, inter alia, the maintenance of all childrenincluding ex-nuptial children. Placitum Sl(xxviiJ of theConstitution provides for the Commonwealth to make lawswith respect to matters referred by the Parliaments of anyState or States but so that the laws extend only to Statesby whose Parliament's the matter is referred, or whichafterwards adopt the law.

The purpose of clauses 5 and 6 is to extend theoperation of the Child Support Bill consequent upon thereferences of power.

Clause 5 extends the operation of the Bill to thereferring States and, if Queensland or Western Australiaalso refer the relevant legislative powers to theCommonwealth or adopt the provisions of the Bill, to thoseStates also. The Bill is also to apply in, and in relation

the addition or omission of a particular; and

the substitution of another particular.

"we9§ly deduction rate" is defined in relation to anenforceable maintenance liability and is ofparticu~ar relevance to persons whose obligationto pay an amount to the Registrar will bedischarged by deductions from salary or wagesthose persons receive. As it will not be relevantfor every payer under the Bill, the weeklydeduction rate is an optional entry that may bemade in the Child Support Register under subclause26(2) of the Bill. Put simply, it is the rate tobe applied by an employer to the salary or wagespaid to an employee/payer in order to calculatethe amount to be deducted by the employer inrelation to the period covered by the salary orwages paid e.g., S50 per week. If the employee ispaid fortnightly, the amount to be deducted by theemployer would be SlOO i.e., S50 x 2.

Subclause 4(2) of the Bill ensures that whateverforms a 7e required under the Bill may be provided for bythe Reg~strar and published in the Gazette for the purposesof the. particular provision in the Bill. This approach toforms ~s more appropriate to modern administrationtechniques and will allow SOme flexibility to change a formin t~e future, should the need arise, without therequ~rement to resort to legislative action.

Subclause (3) of this clause is a draftingdevice. It seeks to ensure that where a liability isentered in the Child Support Register, the reference to theperson named in the entry as the payer or payee, as thecase requires, is to be taken as a reference to that payeror payee notwithstanding the fact that the liability may

Clause 5

Clause 6 Additional application of Act in relation tomaintenance 9f children

". ".

It is, of course, open to the States that have notreferred powers to the Commonwealth Parliament (l.e.Queensland and Western Australia) to enact legislation inrelation to those matter" such as ex-nuptial children andState wards, beyond the Commonwealth's constitutionalpower. Clause 7 provides a mechanism whereby such a Statelaw may be enforced by the Commonwealth for the purposes ofthe Child Support Bill.

t~ the Territories where there are no constitutional1~mitation8 on the Commonwealth's power to legislate withrespect to ex-nuptial children.

Clouse 6 will have the effect that the provisionsof the Bill relating to children of a ~rriaqe willcontinue to apply in Queensland and Western Australia as atpresent in reliance upon the constitutional power withrespect to marriage and to matrimonial causes.

Subclause (I) of this clause allows the Ministerto declare, by ~otice in the Galette, such a State law tobe a correspond~ng State law for the purposes of this~lause i.e., that law would be enforceable by the Registrar~n relation to ex-nuptial children, if the Minister soapproves that law. It is necessary, however, for theMinister to be satisfied that the State law makes adequateand appropriate provision for the collection of periodicamount., in relation to the maintenance of children on aregular and timely basis. Should the Minister ceas~ to besatisfied that this is the case in relation to acorresponding State law, the Minister may revoke thedeclaration of the State law also by notice in the Gazette: subclause 7(2).

Subclause 7(3) indicates the Parliament'sintention that the Registrar and Tribunal should have andbe sUbje~t to any additional powers, functions, rightsl~abilit~es and dutie5 (if any) to those conferred by theB~ll.

Clause 10 : Child Support Registrar

ADMINISTRATIONPART II

This Part contains a number of provisions whichare essential to the efficient administration of the Bill.

As was explained earlier in these notes, theessential feature of this Bill is a system of registrationof certain child and/or spousal maintenance liabilities.Subclause III of this clause statutorily provides for aChild Support Registrar. By subclause 1Q(21. theCommissioner of Taxation is to be the Child SupportRegistrar.

Clause 9 : E3ternal Territories

This clause ensures that the Child Support Billapplies 1n each of Australia's external Territories. Aswas mentioned earlier in these notes, an external Territoryis generally a Territory for the government of which, as aTerritory, provision is made by any Act (see notes on thedefinition of Australia in subclause 4tI)). Whilesubclause 9(1) achieves this result (which is consistentwith the scope of the present Family Law Act 1975), it isalso necessary to ensure that this Bill can apply inAustralian Territories such as Christmas Islands and theCocos (Xeeling) Islands.

Accor~ingly, subclause 9(2) provides for theapplication of the Child Support Bill to such Territories,not covered by the Family Law Act 1975, with whatevermodifications that are necessary. These modifications(which are essentially definitions of words and expressionsused in the family Lfw Act 1975, upon which this Billdepends, which would not apply in these Territories e.g.,child of a marriage etc.) will be provided for inRegulations made under the Bill.

Corresponding State lawsClause 7

Clau'e 8 : Act to bind Crown

This clause is a technical provision which i.required for constitutional reasons. In the ab5ence ofexpress words or necessary implication, Commonwealthstatutes are not considered to bind the Crown. Thisclause, therefore. ensures that the Crown is bound not onlyin the Commonwealth (including Territories which do nothave their own legislatures (subclause 8{2), but in eachof the States, the Northern Territory and Norfolk Islandsubclause 8{ll.

Clause 11 : Registrar to have general administration 9( Act

Under thiS clause, the Registrar (Commissioner ofTaxation) is to be responsible for the generaladministration of the laws relating to registrablemaintenance liabilities.

Clause 12 : Deputy Child Support Registrars

Subclause 12(1) statutorily provides for DeputyChild Support Registrars. By sybclause 12(21 each DeputyCommissioner of Taxation will be a Deputy Registrar for thepurposes of subclause (1).

".Clause 13 : Child Support Register

Clause 13 imposes the duty of keeping the ChildSupport Register on the Registrar (Commissioner of Taxation- sYbclause 13(l)}.

By subclau§e (2) of this clause, it is open to theRegistrar (Commissioner of Tsxation) to keep the ChildSupport Register in such form as the Registrar considersappropriate. In ordinary parlance, a register suggests abook, in which is recorded an Official list of names,events or transactions. In keeping with modern techniquesof administration, this subclause ensures that theRegistrar may keep the Register in a non-doc~ntary formsuch as a computer file or record. '

Clause 11 ; Annual report

As was mentioned in the notes on clause 11, theCommissioner of Taxation, as Registrar, will have the~eneral admin~stration of the Bill. This clause will, as18 customary 1n Australian taxation laws, require theRegistrar to furnish an annual report on the working of theBill to the Minister for presentation to the Parliament(subclause l4(1)). The clause also sets out the rules tobe followed in relation to the presentation of the reportto the Parliaaent (subclause l4(2}1 and a technicaldescription of the report for the purposes of section J4Cof the Acts Interpretation Act 1901.

Clause 15 ; Delegation

Again as is customary with laws administered bythe Commissioner of Taxation, this clause provides for thedelegation, by the Registrar to a Deputy Registrar (DeputyCommissioner) or a person in the Australian Public Serviceunder the direct control of the Registrar (whether asRegistrar or Commissioner>, of all or any powers orfunctions of the Registrar under the Bill. That delegationmay be reviewed or altered by the Reg~strar.

Clause 16 : Secrecy

This clause contains secrecy provisions consistentwith those in other Commonwealth Acts of which theCommissioner of Taxation has the general administration.It will i~pose an obligation of secrecy on officers orformer officers who, in the course of their duties relatedto the administration of the Bill, have acquiredinformation With respect to the affairs of another person.For that purpose, an ~officer~ includes a person who,although not actually appointed or employed by theCommonwealth, performs services for the Commonwealth.

'7.

Officers will be obliged not to ~ke a record of,or divulge or communicate, such information to any otherperson except in the course of their duties and will,generally, not be compellable to give to any court or theTribunal, information relating to the affairs of a personexcept when -

it is necessary to do 80 for the purpose of givin9effect to the provisions of the Billl or

the court ordera the Registrar to furnishinfo~tion in relation to the address of a childunder subsection 64111B) of the Pa~ily Law Act~ _ that subsection relates to the powers or acourt !n custody proceedings.

An officer may also communicate information underthis clauae to -

a person performing duties as an officer under anAct administered by the Registrar, whether asRegistrar or Commissioner; or

the Secretary to the Department of Social Securityor the Secretary to the Department of Veterans'Affairs for the purpose of the a~nistration ofany law of the Commonwealth relating to pensions,allowances or benefits.

An officer may be required to take an oath ordeclaration to maintain secrecy in conformity with thesecrecy provisions.

In recognition of the serious nature of any breachof this provision, the Bill provides for a fine notexceeding 55,000 or jail for a period not exceeding 1 year,or both, on conviction of an offence.

,.. ".

Liabilities in relation to children that are

PART III - REGISTRATION OF MAINTENANCE LIABILITIES

Division 3 - Variations to entries in Child SupportRegister.

a liability of a parent to pay a periodic amountfor the child's maintenance csubparagraph ca)Ci))1or

earlier in theBriefly ,stated,

liabilities by

Liabilities in relation to parties to marriagesthat are regi§trpble maintenance lipbilities

Specifically, paragraph (2)IA) allows forregulAtions to be made to cover both types of registrablemaintenance liabilities i.8., child lclause 17) or spousalcclause 18).

the liability is 6 collection agency maintenanceliability (see earlier notes on that expression insubclause 4(ll of the Billl - subparagraph lb)(iil.

the liability arises under a court order or courtregistered agreement {see earlier notes on theseterms in subclause 4cl11 - ,ubparaqraph {bllil,

the liability is a collection agency maintenanceliability (see earlier notes on this term insubclause 4(ll) - subparagraph Cb)(ii).

Clause 19 I Exclusion of liabilities by regulatiOn

As drafted, clauses 17 and 18 would apply to allchild and lor spousal maintenance orders or agreements. Bysubclause 19(1), the Regulations may provide that specifiedliabilities, or liabilities in specified classes ofliabilities are not registrable.

To that end and without limiting subclause 19111,,ubclau§e 19(2) identifies the kind of tests or parametersthat may be reflected in any regulation made under thisclause to exclude certain registrable maintenanceliabilities.

Clause 18

This clause is, as was mentionednotes on this Part, subject to Clause 19.that clause provides for the exclusion ofregulation.

This clause, which is also subject to clause 19Isee notes on that clause and clause 17), describes what isessentially a ~pousal periodic maintenance liability of aparty to a marriage - paragraph la). Spousal maintenancewill be a registrable maintenance liability if either ofthe following applies

of maintenance.~

Registrable maintenance liabilities;

- Registrationliabilities;

Division 2

Division 1

Division 1 - Registrable maintenance liabilities

This DiVision establishes what maintenanceliabilities are registrable i.e., capable of beingregistered under the Bill. The coverage in the Bill istechnically broader, as was indicated by the Minister forSocial Security at the time of introducing the Bill in theParliament, then will actually be the case. It is proposedto make regulations under the Bill to identify the variouspopulation and other tests to be applied in order toprecisely determine the actual scope of the Bill : seelater notes on clause 19.

The central theme of the Bill 15, as mentionedearlier, the registration of certain maintenanceliabilities. That theme is provided for in this Part ofthe Bill, which 1s comprised of three Divisions _

Clause 17

a liability to a step-parent to pay a periodicamount for the child's maintenance IsubparagraphlaHUl) .

Before either of the above liabilities may betreated as registrable maintenance liabilities, either ofthe following conditions must also apply _

the liability arises under a court order or courtregistered maintenance agreement (see earliernotes on these terms in subclause 4Cl) of the8~111 - subparagraph lbl{i)l

30. 31.

AS soon as possible after the commencement of thisBill, it is proposed to transfer the responsibility forcollection of maintenance orders and agreements fro. Stateor Territory collection agencies lincluding the courts) tothe Child Support Registrar.

The reason it is impossible to predict theseevents is that there is no reliable information about thenumbers of people currently eligible for maintenancecollection who will actually seek to use the 6cheme.

Division 2 - Registration of maintenance liabilitiee

AS the above heading indicates, this Division ofPart III of the Bill sets out the rule6 to be followed byall the parties concerned in giving effect to th~registration of a registrable maintenance liabi11ty.

It is intended that the Registrar will collectmaintenance amounts specified in maintenance orders issuedto couples who separate after the date the Bill comes intoeffect and issued to cover children born after that datewhere the parents have not lived together. The ~egistrarcan also collect orders issued to people in rece~pt ofSocial Security and Veterans' pensions, benefits andallowances no matter what date they separated. In additionthe Registrar will collect maintenance liabilities whiChare lodged for collection by agencies in the States andTerritories which have referred power to the Commonwealth,if the functions of those agencies have been taken over bythe Commonwealth collection agency.

It is highly desirable to define the classes oforders to be collected in regulations because it i~ likelythat these categories will require amendment. It 1Sexpected that there will be numerous applications forcollection by the Registrar and initially a strain may beplaced on the resources of the Commonwealth. ~t ispossible that after a period of time the benef1ts ofcollection by the Registrar can be extended to othercategories of the population who have maintenancecollection orders. It is also possible that some classeswill need narrower definition.

Paraaraph (2)(bl outlines the kinds of matters byreference to which particular liabilities or classes ofliabilities may be excluded from the scope of the Bill.They are

the date orders or agreements covering theliabilities were .ade, registered etc.(subparagraph lb}(i))i

particular characteristics of the persons coveredby the liabilities namely -

the dates of birth of the children and (ifnecessary), when their parents separated(sub-subparagraph (bJliiICAI)Jthe age of adults and whether or not they arereceiving an income tested pension(sub-subparagraph Ib)(ii}(S)I;

whether or not the liabilities are covered by thedefinition -collection agency maintenanceliability· (subparagraph (bl(il1)).

Under the Family Law Act 1975, the court ~y orderthe payment of maintenance, either child or spousal, whereessentially the court considers there is an urgent orimmediate need for financial assistance - section 66K or 77of that Act, respectively. The period of these orders is,generally speaking, likely to be very short given theurgent nature of the orders. If such orders were made forperiodic maintenance, they would ordinarily be collectableby the Registrar by virtue of the operation of clause 17 or18 of the Bill.

The machinery provisions for collection ofmaintenance liabilities may be inappropriate in the case ofsection 66K or 77 orders. Any delay in collection mayadversely affect the payee under the order and even defeatthe purpose of the courts making of the order.

Accordingly, subparagraph (b!eiv) allows for aregulation or regulations to be made that will ensure thatif a court, that makes a section 66K or 77 order, believesit would not be appropriate to involve the Registrar incollection of the order, then the liability that arisesunder that order will not be a registrable maintenanceliability.

Clause 20 Arrangement6 with States, Northern Territoryand Norfolk Island for transfer of liabilities

32. 33.

In order for the Registrar to operate effectively,it is essential that the Registrar receives timelyinformation in relation to orders or agreements that giverise to a potential registrable maintenance liability.Accordingly, this clause imposes certain obligations onpayers and payees under such liabilities.

for transfer of liabilities

This clause is co~plementary to clause 20 : seenotes on that clause. It provides for formal arrangementsto be entered into between the Registrar and the relevantauthorities of a Territory that does not have its ownlegislature {in particular, the Australian CapitalTerritoryl to transfer responsibility for maintenancecollection to the Registrar. The clause is in si~ilar

terms and to a similar effect as clause 20.

This clause allows for formal arrangements for thetransfer of registrable maintenance liabilities to beentered into between the Governor-General and the Governorof a State or the Administrator of an Australian Territorywhich has lts own legislature li.e., the Northern Territoryand Norfolk Island). The intention is to provide by thisclause, the greatest degree of flexibility possible toassist in addressing any particular problems that may arisein negotiations with any State, the Northern Territory orNorfolk Island.

Clause 22 : Registrar to register transferred liabilitiesin Child Support Register

This clause provides for a duty on the Registrarto register a liability transferred to the Child SupportRegister under arrangements made under clause 20 or 21 :see earlier notes. The Registrar is, by this clause, toenter particulars of such liabilities in the Child SupportRegister within 2e days after the transfer of theliability. Should the Registrar either not do, or refuseto do, that, subclause 4(4) would apply in relation to theRegistrar's failure or refusal to register the liability:see earlier notes on that subclause and the definition of"appealable refusal decision" in subclause 4(1). It is possible, under this clause, for certain

payees to effectively "opt-out" of collection ~f theirregistrable maintenance liobilities by the Reg~strar.

Subclause 2313J provides the technical mechanism by which apayee may "opt-out" of the scheme. Basically, a payee neednot complete the form required by subclause (2) if thepayee elects within the 14 day period mentioned in thatsubclause (see above notes) not to have the liabilityenforced under the Bill. There is, however, one provisothat attaches to this opting-out arranqement.

under the Fomily Lew Act 1975 or a law of aTerritory, a court -

makes or registers an order (subparagraph(al{p); orregisters or approves a maintenance agreement{subparagraph (a)(iilll (lind

either of the following apply -

the order or agreement establishes aregistrable maintenance liability(subparagraph <bUi»1 .the order or agree~ent varies or otherw~se

affects a reqistrable maintenance liabilitythat is ~ registered (subparagraph (bl{ii)).

Broadly this clause will apply to these orders ora9ree~ent5 that ~re made after commencement of the Bill.

A payee under a liability described insubclause (II has 14 days within which to duly complete anapproved fora for the purpose of this subclause and furnishthat form to the Registrar. The 14 day period commences,under subclause 23121, the day after the day of the makingor registering of the order, or the registering or approvalof the agreement, as the case may be. While there is ~ospecific provision for any extension of the 14 day per~od,it is relevant to consider, in this regard, the operat~onof proposed subclause (e) of this clause: see notes laterin this clause.

Subclause 23111 describeS the circumstances which,when they occur, will attract the operation of the otherprovisions of this clause. Put simply, this clause applieswhere

Payer and payee to notify Registrar whenregistrable maintenance liability arises etc.

Arrangements in relation to Territories (otherthan the Northern Territory or NQrfolk Island 1

Clause 23

Clause 21

34. 35.

Subclause (2) of this clause simply ensures thatwhere a payee fails to comply with subclause 23t2l i.e., toact within the required 14 day period, the Reqist:ar maystill register the liability by entering the part~cular8 ofthe liability in the Register. This subclaus~ ensures theenforcement of a registrable maintenance liab~litynotwithstanding any failure by the payee to comply with theprovisions of the Bill.

This clause provides for the registration ofliabilities that are not registered. As a general rule,this clause will apply in relation to that part of thepopulation that have registrable maintenance liabilities atthe time this Bill is proclaimed to come into operation.When read with clause 19 and regulations to be made underthat clause this clause will allow certain of those -oldpopulation-'individuals to apply to the Registrar forregistration of their liabilities.

Subclause 25(1) provides that a payee whoseregistrable maintenance liability is unregist!red may applyto the Registrar in the approved form for reg1stration.There is, however, no compulsion under this clause forpayees to apply. Provided they are not excluded byregulation the Child support Agency will, however, enforcea payee"s ~egistrable ..intenance liability under thissubclause on receipt of an application frca the payee.This approach is contrasted with the approach under clause23 and 24 for the -new population".

By subcl«yse 25(2), the Registrar is compelled toregister a liability upon receipt of a duly com~leted formfrom the payee under subclause 25(11. Under th1ssubclause the Registrar has 28 days after receipt of thefo~ to r~gi8ter the liability by entering the details ofthat liability in the Child support Register.

Should the Regiltrar not register, or refuse toregister that liability within the 28 days required,subclaus~ 4(41 will apply in relation to the Regis7rar'sinaction or refusal, as the case may be : see ear11er noteson that subclause and the definition of appealable refusaldecision- in subclause 4(1).

A payee ~s not permitted to 'opt-out" of the aehe~e

under aubclause (3) if the payee is in receipt of an incomet ••ted penaion, allowance or benefit (subclause 24(4)) :aee earlier notes on that expression in subclause 4(1).

Subclayse (51 of this clause puts a similarobligation on a payer to supply to the RegistrarInfo~tion in relation to a liability covered by thisclause. The payer is also required to complete theapproved form within the 14 day period mentioned in thenotes on subclause (21. If a payee makes an election to-opt-out- of the scheme, the payer is not required tocomplete the form under this subclause - Subclause 23(61,

SUbcloyse (71 of this clause creates an offencewhere a payee or payer contravenes subclause 121 or 151,respectively. The offence ia punishable, on conviction, by4 fine not ezceeding 51,000.

As was aentioned earlier in the notes on thisclause, the 14 day period within which a payee or payer (aathe caae aay bel is required to act, is not subject to anyeztenaion or variation by the Registrar or any otherperson, However, 'ubclause 23(81 provides a defence forsuch payers or payees i1 the person charged can establishthat the particular form was furnished to the Registrar assoon aa waa reasonably practicable after their knowledge ofthe making or registration of the order or registration orapproval of the agreement.

CIty" 24 I RegistrAr to register liability in ChildSupport Register on receipt of notification

This clause provides a duty on the Registrar toregister a liability covered by clause 23. Upon receipt ofa duly completed form from the payee under subclause 23(21the Registrar is required to register that liability by ,entering the particulars of that liability in the ChildSupport Register - subclause (1) of this clause. TheRegister is required to effect registration within 28 daysof receipt of the payee's duly completed form.

Should the Registrar not register such a liabilityor refuse to register such a liability, within the 28 days,subclause 4(4) will operate in relation to that inaction orrefusal of th' Registrar I see earlier notes on thatsubclaus. and the definition of -appealable refusaldecision-,

Clause 25 : Applicationmaintenance

for registrationliability

of registrable

36 • 37.

any person's name to whose maintenance the entryin the Register relates (paragraph iell

in relation to child maint.enance, each child'sn4!lle and date of birth (parag;g;ph (dl)I

There is certain information that must be enteredin the Child Support Register in relat.ion to eachregistered maintenance liability. That information isdescribed in subclause 26(11 in detail as follows _

payer's name (paragraph (a I I;

payee's name (paragraph (bl)I

particulars of the order or agreement and anysubsequent order or agreement affecting theearlier order or agreement that identify the baaisof the statutory liability to be provided forunder the Bill (paragraph Ic)};

the periodic amount (or the aggregate thereof ifmore than one amount I to be paid by the payere.g., 550 (paragraph (f)l;

if the entry covers more than 1 person, theperiodic amounts payable in respect of each e.g.,550 spousal and 575 for the child (paragraph (all;

the period the amounts referred to earlier arepayable e.g., Wilekly, fortnightly et.c. (paragraph.i.h.ll ;

the day the liability becomes one which isenforceable under the Bill (paragraph (1);

if the liability ceases to be enforceable, eitheronce or more often - each day the liability ceases(paragraph (k»;

if the liability commences aqain to becameenforceable - each day it so commences(pangr(l.ph 1m»;

where a liability is suspended, particulars ofthat .uspenaion (parograph in II; and

any terms and conditions in the order of agreementthat ought to be included in the Register toensure the order or agreement is given full effectto under this Bill (paragraph lpll.

Subclause (21 of t.his clause identifies two piecesof information that the Registrar is not statutorilyrequired to enter in the Child Support Register.

They are -

the daily, weekly or monthly rate of payment inrelation to the periodic amount referred to insubclause 26(11 - paragraph (2)(1'1.); and

whether or not automatic withholding is to applyin rela tion to the payer - paragraph <21 (b) .

Other matters may also need to be included in theentry in the Child Support Register depending on theparticular circumstances of any case. To accommodate thepossibility of such a change, ppragraph (2}(c) allows theRegistrar to include such other matters as the Registrarconsiders necessary or desirable.

Sypport RegipterParticular, of liability to be entered in Child

. A~ was mentioned earlier, this clause will applybas~cally 1n relation to persons with orders or agreementsin existence at the time the Bl11 comes into effect.However, it would be possible, technically, for a payee towhom clause 23 of the Bll1 applies, to complete a formunder this clause and furnish it to the Registrar.Subcl'use 25(3! ensures that, if a payee is required to, orhas furnished, a duly completed form to the Registrar undersubclause 23(2), the Registrar cannot reqister thatliability under this clause.

Under this clause all collection agencymaintenance liabilities could be registered if the payeesapplied to the Registrar on the day the Bill came intoeffect.

Subclause 25(4) will ensure, however, that. in t.hetransfer to the Registrar of collection agency maintenanceliabilities, only those cases that have been agreed t.o bet.ransferred direct to t.he Child Support Register maytechnically apply to the Registrar. This will simplyensure the smooth transfer of all cases, which is expectedwill take place over a 12 month period after commencementof the 8ill. The Regulations will prohibit thoae case. notagreed to be transferred initially fro. coming int.o thescheme under this clause : see also notes on clauses 20 21and 22. '

Clause 26

38 •

Clause 27 • Single entry in relation to all liabilitieswith same payer and payee

This clause will allow the Registrar to includepartic~lars of liabilities in respect of the same payer andpa¥ee :0 the same entry 1n the Child Support Register.Th~s wLll be the case whether or not the liabilities ariseunder the same court order or maintenance agreement andwhether or not the liabilities are in relation to themaintenance of.the same person. For example a liability topay spousal maLntenance under a maintenance agreement forthe payer and a court order to pay maintenance by thatpaye: to the same payee but in respect of a child of themarrLage, could, .under this clause, be included in the sameentry LO the RegLster.

Clause 28 ; Day on which liability first becomesenforceable under Act

This clause establishes the various days on whicha liability that is registered under thiS Division willcome into effect. They are -

for a transferred maintenance liability - the dayof transfer (paragraph (al);

for a liability registered under clause 24(essentially under new population orders ora9reements made after the commencement of theB~lll - the day on which the liability arose underthe order or agreement (paragraph (b11.

for a l~ability registered under subclause 25(21(essent~ally under old population orders oragreements made before commencement of the Bill) ­a day determined, in writing, by the Registrar butnot later than 60 days after receipt of the formunder that subclause (paragraph (c».

Clause 29 ; Co~version of amounts payable under registrablema~ntenance liability into daily rates etc.

When an order is made, for example, the particularamount provided for by the court for payment by the payerwill usually take into account the circumstances of thepayer. If the payer is an employee who gets paid on afor~nightly basis, the court would usually order payment ofa f~xed amount, say 5100, by the payer each fortnight.

39.

The effluxion of time often sees the payer'scircumstances change, For example, the payer couldcommence his or her own business. The payer might changeemployers and the new employer may have a different paycycle e.g., calendar monthly.

In order to ensure that uniform amounts arepayable by all payers, irrespective of their particularcircumstanCes, this clause will allow provision to be madein the Regulations for the conversion, of periodic amountspayable under court orders or maintenance agreements thatgive rise to a registrable maintenance liability, intostandard daily, weekly and monthly rates of payment. Thisfacility will greatly assist in the overall administrationof the scheme for the Registrar, employers and payers alike .

•Clause 30 ; Effect of registration

This clause is a pivotal feature of this Bill andis important in two respects.

First, it provides that amounts payable under aliability in relation to the child support enforcementperiod _ that is the period during which a registeredmaintenance liability is enforceable under the Bill - aredebts due by the payer to the Commonwealth, but only inaccordance with the particulars entered in the ChildSupport Register in relation to that liability - paragraphlll..

Moreover, the clause makes it clear that once aregistrable maintenance liability becomes enforceable underthe Bill, the payee under the liability is no longerentitled to payment of the amounts due under that liability(the amounts are, as mentioned above, debts due to theCommonwealth) and may not enforce payment of those amountsagainst the payer - paragraph (b1.

Clause 31 ; Effect of registration on existing garnishmentand attachment of earnings orders

Under the Family Law Act 1975, the MatrimonialCauses Act 1959 or the law of the State or Territory, agarnishment or attachment of earnings order may have beenmade in relation to the liability that is being registeredand enforced under the provisions of this Bill. Thisclause will operate to ensure that such an order, in so faras it relates to a child support debt, ceases to haveeffect.

'0. ".

Subclause (21 of this clause, like subclause33(2/, makes it an offence for a person to contravenesubclause 34l1/. On conviction, a person could be liablefor a fine of up to 51,000. Subclause J413l provides adefence to a prosecution under subclause 3412l and is tothe same effect and in the same terms as subclause 33(3)Isee notes on that subclausel.

In keeping with other provisions of the Bill, thisclause does not allow for any extension or variation of thestatutory 14 day period. However, it is a defence to aprosecution for an offence against subclause ))(2), ~f theperson can establish that the relevant form was furn~shed

to the Registrar as soon as was reasonably practicablesubclause JJ(3/.

affecting event

An affecting event can, by definition, only applyin relation to an enforceable maintenance liability. These"events· are in addition to, and mutually exclusive of,court orders or agreements that may vary or otherwiseaffect an enforceable maintenance liability ; see earliernotes on the definition of "affecting event· in subclause4(1).

Subclause J4(1), therefore requires a pay~e ofsuch a liability to notify the Registrar, once aga1n in theapproved form, of the happening of an affecting event.This notification is, like that required in clause 3J, tobe given within 14 days of the happening of the event.

A payee is not required to notify the Registrar ofan affecting event if the event, in relation to aregistrable child m&.intenance liability, is the child'seighteenth birthday. ~ the Registrar will have entereddetails of each child's birth on the Child Support Register(see earlier notes on paragraph 26(1)(d», the Registrarwill be able to act on the happening of such an eventwithout notification by the payee ; see also notes onclause J7.

Payee to notify Reai'trar of happening ofClause 34

an order is .ade by, or registered in,(subparagraph la}(ill; or

a maintenance agreement is registered in, orapproved by, (subparagraph lal(ii»,

a court under the family Law Act 1975 or the law of aTerritory, ~

Clause 32 : Payer and payee to be given copy of entry inChild Support Begister on request

Subclause J211J simply provides that either apayer or payee ~y request the Registrar to provide a copyof the entry in the Child Support Register that relates tothe payer's or payee's (as the case may be) registeredmaintenance liability. By subclause 32(2), the Reqistraris compelled to comply with such a request.

pivision J - variations to entries in Child Support Register

There are a number of circumstances, theoccurrence of which viII operate to vary or otherwiseaffect a registered maintenance liability. This Divisionsets out those circumstances and the rules to be followedby payers, payees and the Registrar.

Clause 33 ; Pavee to notify Registrar of court order

the order or agreement varies or otherwise affectsa registered maintenance liability (parograph (bl).

This subclause does not apply to an order or agreement thatvaries or otherwise affects a registered maintenanceliability that is not enforceable because the payee haselected to ·opt-out" of the scheme (see later notes onclause 381.

a court order or court registered maintenanceagreement (subclause 3Slll/; or

Child Support Register

While the provisions of clauses 33 and 34 aremandatory for a payee to act upon, it is possible that apayer may also wish to notify the Reqistrar of -

Under this subclause, the payee has 14 days frogthe day of making, registering or approving the order oragreement, as the case may be, within which to notify theRegistrar.

Where a person fails or refuses to comply withsubclause 33(11, subclause 33(2/ provides for an offencewhich, on conviction, is punishable by a fine of no morethan 51,000.

Clause 35 ; Payer moy opply to Registrar for variation of

42.

the happening of an affecting event (subclausellilll,

Clause

43.

38 I Election to have enforceable maintenanceliability no longer enforced under Act.

that varies or otherwise affects an enforceable maintenanceliability. This clause allows the ~yer to apply to theRegistrar, if the payer desires, for variation ofparticulars entered in the Registrar as a result of such anorder, Agreement or event, as the case may be.

ClAUS' J6 I Reaistr.t to vary Child Support Register onreceipt of notification or application

By clause 36, the Registrar is required to varythe particulars entered in the Child Support Register thatthe Registrar COnsiders necessary or desirable to enablet~e order or agreement to be given full effect under theB~ll or to take account of the happening of the affectingevent. After receiving a duly completed form underaubclause 33(11, 34(11 or 3Sll) or 12} (see above notes onthose subclauses) the Registrar is required to act within28 days of receipt of that form. Should the Registrar failor refuse to act within that time, subclause 4(4) willoperate in relation to the Registrar's failure OJ: refusalto act 1 see earlier notes on that subclause and thedefinition of -affecting event-.

Clou,e 37 1 Rtqistrpr pay vary Child Support Register togive effect to a court order etc.

Information will come to the Registrar from thecourts, as well as payers and payees of enforceablemaintenance liabilities (see later notes on clause 112 inPart IX of the Bilil. At the same time, certain facts willbe known to the Registrar to have occurred because ofinformation contained in the particulars entered in theChild Support Register in relation to such a liability Iseealso notes on clause 26).

Clause 37 provides a Mechanism whereby theRegistrar may act to vary the particulars entered in theChild Support Register in relation to such a liability totake account of -

an order or agreement (paragraph (alll or

the happening of an affecting event(paragraph (b)).

The Registrar is entitled to act under this clausewithout having received a duly completed form from a payeror payee under subclauses 33(1), 34(1) or 3S(I) or (2) asthe caSe requires.

Provided a payee is not in receipt of an incometested pension, allowaRce or benefit, the payee is, underthis clause, entitled to elect, in the approved form, to·opt-out- of enforcement of the registered maintenanceliability under the Bill. This clause is complementary tosubclauses 23(3) and 14l but provides for the case wherethe registrable maintenance liability has becomeenforceable.

Where a payee makes an election under this clause,the Registrar has 28 days after receipt of the approvedfO[lll to vary the particulars entered in the Child supportRegister by speeifying a day that the liability ceases tobe enforceable - parAgraph 38Ia). That day ~y not, underthe terms of that paragraph, be any later than 60 daysafter the day the Registrar received the form.

Paragraph lbl of this clause recognises that anelection made in these cases can only be made once and inrelation to a liability has become enforceable.Accordingly, there may be AtaOunts outstanding i.e., unpaid,in relation to the child enforce.ent period (see earliernotes on this term in subclause 4(1». It is, under theterms of this paragraph, open to the payee to elect to havesuch unpaid amounts no longer enforced under the Bill.Should the payee not make an election under paragraph (b)of this clause in relation to such unpaid amounts, theRegistrar will be obliged to seek payment of those amountsin due course from the payer under the liability

Clause 39 I Application for variation to enable liabilityto again become enforceable under Act

This clause is complementary to, and should beread in conjunction with, clause 38.

A necessary corollary to -opting-out" of thescheme is being entitled to come back into the ~cheme andto once again have the registered maintenance l~abilityenforceable under the Bill. Accordingly, subclause 39(1)allows a payee who has elected to -opt-out" of the schemeunder clause 38 to apply to the Registrar, in the approvedform, for the liability to be reactivated.

••• '5 .

Clause 43 sets out the general rule that automaticwithholdinq is to apply where the payer of an enforceablemaintenance liability is an employee.

This elause will authorise the Registrar tocorrect any clerical error or other mis~ake that may, fromtime to time be identified in the part~culars entered inthe Child Support Register in relation to a registeredmaintenance liability.

Subcl~use 43(1) is the operative provision thatspecifies that the Registrar shall, as far as practicable,collect amounts due to the Commonwealth under the liabilityby deduction from the salary or waqes of the payer of anenforceable maintenance liability_

Subclause 43(2) qualifies the general rul~ undersubclause (1) by providinq that automatic withhold~nq is toapply whether or not the particulars in the entry in theChild Support Register contain a statement that automaticwithholding applies. However, where the particularscontain a statement that automatic withholding does notapply because of one of the reasons set out in clause 44(see notes on that clausel automatic withholding will notapply in relation to the liability.

PART IV - COLLECTION BY DEDUCTIONFROM S~LARY OR WAGES

Division I - Autom9tic Withholding

Divisron I of this part contains a range ofprovisions that relate to the obligations placed onemployers to deduct maintenance from the salary or wages oftheir employees who are payers of enforceable .aintenanceliabilities. As pointed out earlier in this memorandua,automatic withholding is based broadly on the PAYEprovisions of the Income Tax Assessment Act 1936.

Although the Bill provides for other methods ofcollection auto~tic withholding is to be the pr~ryapproach a~d will be used for liabilities that arise afterthe commencement of this Act in as ~ny cases aspracticable where the payer is an employee.

43 I General rule of collection by aqtomaticwithholding in cpse of employees

42 : Correction of clerical errors and othermistakes in Child Support Register

Clause

Clause

to make such variations to particulars in theChild Support Register to -

give full effect to a court order or courtregistered maintenance agreement that affectsthe liability (subparagraph (b) Ii) , orthe happening of an affecting eventIsubparagraph (b)lii)).

Under paragraph 38(2)la), the Registrar isrequired to re-establish enforce~nt of the liabilitywithin 28 days after receipt of the duly completed formfro. the payee. Should the Registrar refuse or fail to doso, subclause 4(4) would operate in relation to theRegistrar's failure or refusal : see earlier notes on thatsubclause and the definition of "appealable refusaldecision".

Under subclause 39121, following receipt of a dulycompleted form, the Registrar 1s required _

to recommence enforc~ent of liability under theBill on a day, not being more tho.n 60 days afterreceipt of the form under subclause (11 _paragraph (4); and

Clause 40 I Entry wrongly existing in Child Support Register

This clause Ilike clauses 41 and 42) will assistthe Registrar in the general administration of the ChildSupport Register. There may be circumstances where theRegistrar becomes satisfied that, despite the precautionsprovided for in the Bill, an entry was wrongly made in theChild Support Register. This clause requires the Registrarto delete such entries from the Register.

Clause 41 I Obsolete entries in Child Support Register

Subclauses 23(3) and (4) and clause 38 togetherwill .aan that certain registered ~intenance liabilitiesare no longer enforceable under the Bill. At the sametime, a terminating event ~y happen in relation to such aliability.

In both these cases, the effluxion of time may~an that the entries in the Child Support Register becomeobsolete 8.g. a payer of a child maintenance liability"opts-out" of the scheme and the child later turns 18.Clause 41 will allow the Reqistrar to delete such entriesfrom the Register.

46. 47 .

Clause 44 : Cases 1n which automatic withholding not

By virtue of the operation of clause 44, automaticwithholding will not apply in certain circumstances.

By subclause 44(1) the payer of the registrablemaintenance liability that arose before the commencement ofthis Bill may elect that automatic withholding is not toapply.

vary the particulars of the entry within 28 daysafter receiving the form so they contain astatement that automatic withholding does notapply - in any other case (paragrpph <bl).

Subclause 44(2) proposes that a court havingjurisdiction under this Bill - see notes on Part VIII ofthis Bill - may, by order, direct that automaticwithholding is not to apply in relation to the liability,if it is satisfied thatl

the payer of a registrable maintenance liabilitywould be likely to make regul""r and timelypayments <see also not.es on paragraph 31b) of theBilll if automatic withholding was not applied(paragraph (a»)1 and

it is undesirable on the grounds of personalprivacy in the special circumstances of aparticular case that. automat.ic withholding shouldapply (paraaraph (bl).

Where proceedinqs are instituted in a court undersubclause (2), it is possible t.hat it may be some timebefore a decision could be given that automatic withholdingwas not to apply on the grounds of personal privacy.Accordingly, subclause <)) provides a facility to the courtto direct by order, if the circumst""nces so warrant, t.hatautomatic withholding not apply pending the disposal of theproceedings referred to earlier.

Where the Registrar has to v""ry the entry under thissubclause, it must be completed within 28 days afterreceipt of the cbpy of t.he order. Should the Registrarrefuse to vary the ent.ry within that time, subclause 4(4)will come into operation I see notes on that subclause andthe definition of -appealable refusal decision" insubclause 4 I 1) .

Subclause 44(5) stipulates that. wherel

the particulars in the entry on the Child SupportRegister contain a statement that automaticwithholding does not apply because of theoperation of subsections (1) or (4) (paragraphllll; and

the payer fails to make regular and timelypaYJllenta to the Registrar while automaticwithholding is not. being appliedS!J,ubparagnph <bllil); or

the payer fails to provide a copy of an order ofthe court under subclause () to the effect. thatautomatic Withholding is not to apply, within)mont.hs of the making of that order (subparagraph<b)!iii)) I

By subclause 44(6), the Registrar may include in,or vary, the particulars of the entry in the Child SupportRegister, a statement that automatic withholding does notapply where the Register is sat~5fied that due to ~hespecial circumstances of a part1cular case automat1c

the Registrar shall vary the particulars to show that .automatic withholding applies, provided the Registra7 ~s

satisfied that automatic withholding would be an eff1c1entmethod of collection in a case referred to in subparagraph(b) (i).

Subclause 4414> requires the Registrar to ensurethat a statement is included in the particulars of theentry in the Child Support Register that automaticwithholding does not apply where:

a court makes an order under subclause 121 or (3)that automatic withholding 1s not to apply(paragraph lal'; and

the payer of the registrable maintenance liabilityfurnishes a certified or sealed copy of the orderto the Registrar <paragr""ph <bl.The payer must furnish a duly completed approved

the Registrar who shall:

include in the particulars of the entry in theChild Support Register a statement that automaticwithholding does not apply - where the form isreceived by the Registrar before the liability isregistered (paragraph lall;

fOrlll to

48.

withholding would be an inefficient method of collection.One exampl~ where this might occur could be the case of anitinerant worker.

SUbclayse 44171 requires the Registrar to vary theparticulars so that automatic withholding applies unlessthe Registrar is satisfied that automatic withholding wouldstill not be an efficient method of collection where:

the particulars contain a statement that automaticwithholding does not apply because ofsubcbuse (61 (paragraph (all; and

the payer fails to make regular and timelypayments to the Registrar while automaticwithholding ill not being applied (pan.graph (bll.

Subclause 441S1 directs the Registrar to vary theparticulars in the entry in the Child Support Register sothat automatic withholding applies where:

the particulars contain a statement that automaticwithholding does not apply because ofsubclause (6) (paragraph (al); and

the Registrar becomes satisfied that automaticwithholding would be an efficient method ofcollection (paragraph (bl I.

Subclause 44191 provides that the Registrar shallhave particular regard to the need to ensure that paymentsare received on a regular and timely basis when determi.ninqwhether automatic withholding should apply for the purposesof subsections (51, (61, (1) and <S>.

Subclause 44<101 stipulates that automaticwithholding will not apply when the period at which ~untsare payable under an enforceable maintenance liabilityexceed one calendar Denth.

Clause 45 ; Notification to be given to employer andemployee

Clause 45 provides for a written notice to beQiven to an employer requiring the employer to instituteautomatic withholding in respect of a particular payer.

49.

Under subclause 45(1), the notice to the employershould specify the name of the payer and other particularsof the payer which will enable the payer to be identifiedby the employer lp!ragraph (all. The notice shouldinstruct the employer:

to make periodic deductions in accordance with thespecified weekly deduction rate from a specifiedday (subparagraph <hl Ii). and

to pay the amounts ded~cted to the Registrar inaccordance with subsection 47(11 <see laternotes); (subparagraph <b)<ii)).

By sybclause 45<21, the Registrar is required togive a written hot ice to the employer varying or revokingthe earlier notice where:

particulars entered in the Child Support Registerare varied (paragraph (all, and

the Registrar considers that the notice issued inaccordance with subclause (1) should be revoked orvaried because of the variations made to theparticulars (paragraph (bl.

Subclause 451)1 requires the Registrar to giveforthwith a copy of a notice issued in accordance withsubclause <ll or (2), to the payer.

Clause 46; Qutv of employer to make deductions from salaryor wages

This clause sets out the basiC duties of employersin relation to automatic withholding.

By subclause 46(ll but subject to the protectedearnings ~unt <see notes on subclause (3», an eaployeris obliged to make a deduction from the salary or wages ofan employee in relation to whom a notice has been given tothe employer under subclause 45(1). A penalty of 51,000 isprovided for contravening this requirement. An amount notexceeding the amount of the deduction may also be payable(see later notes on subclause <51).

Subclause 46(2) stipulates, subject to theprotected earnings amount (see notes on sub-clause (41),that the amount of the deduction is the amount ascertainedby applying the weekly deduction rate (see earlier notes onthat expression in subclause 4(1)) specified in the noticeto the pay period.

'0. ,1.

en

the

Subclause 46{» states that a deduction shall notbe _de from the salary or wages 1n respect of a particularperiod if the salary or wages are less than the protectedearning. rate (see earlier notes on that expression insubclause 4(1» for that period (in subclause (41 calledthe protected earnings amount).

Subclause 46(61 applies to payments of salary orwages which do not relate to any specific period of ti.e.Paragraph lal of that subclause provides that in the caseof salary or wages paid for piece work or in respect ofservices rendered under a contract wholly or principallyfor the labour of the employee, the employee shall bedeemed to be entitled to receive the salary or wages inrespect of the period of time from the commencement of theperformance of the work or services until the completionthereof.

Two or more employers in relation to oneClause 48employee

This clause will allow the Registrar to applyautomatic withholding where the payer of an enforceable~intenance liability is 1n receipt of salary or wages frommore than one employer. Under paragraph tAl, the Registrarmay treat anyone employer as the only employer for thepurposes of automatic withholding.

Clause 47 : Additional duties of employers

Clause 47 is complementary to clause 46 and placessome additional duties on employers.

By sYbclause 47111, an employer who had madedeductions of maintenance during any calendar MOnth mustpay to the Registrar the amounts so deducted ~ furnish,in the approved fo~, the particulars required by the form,not later than the seventh day of the following month. Apenalty of $5,000 or imprisonment for 12 months, or both,is provided for contravention of this subclause.

Subclause 47(2) provides that when a payment ofsalary or wages is made to an employee to wham a noticeunder subclause '5(1) is in force, the employer must givewritten notice to the ~ployee;

of the amount of the deduction (paragraph (all; or

that no deduction has been made (paragraph (b»

A penalty of SlOOO is provided for contraventionof thiS subclause by an employer.

An employer is also required to notify theRegistrar, in the approved form, if an employee to whom anotice under subclause 45<ll is in force, ceases to be anemployee of the employer The requirement, which isprovided for by subclause 471), must be discharged by theseventh day of the month following the cessation ofemployment of the employee.

A penalty of 5500 is provided for contravention ofthiS subclause.

Subclause 47(4) allows the Registrar to vary anyof the requirements of the last three subclauses in suchinstances and to such extent as the Registrar thinks fit.In such a case, a written notice should be served on theemployer.

the

to

Subclause 46141 deals with the situation whereamount of salary or wages 1s greater than the protectedearnings amount but is not enough to cover the requireddeduction. In this case the amount of the deduction isbe the amount by which the amount of salary or wagesexceeds the protected earnings amount.

Where a person is convicted before a court ofoffence against subclause (II, the court may order theperson to pay to the Registrar an amount not exceedingamount of the deduction: subclause 46(5)

PAragraph (bl states that in the case of salary orwages paid in respect of any other service performed orrendered but not in respect of a period of time, therecipient shall be deemed to be entitled to receive thea.ount in respect of the period of 52 weeks preceding thedate of receipt. Where payments are received in respect ofa period of time in excess of I week, their reduction to aweekly basis is provided for by paragraph Ic!.

SYbclause 46(7) proposes the aggregation for thepurpose of automatic withholding, of 2 or more s~sreceived fro_ the one employer in a week or part of a week.

Subclause 46(8) specifies that in taking theprotected earnings amount into consideration Isee earliernotes on subclauses IJ) and 14ll, the amount of any salaryor wages shall be taken to be the net amount afterdeduction of tax instalment deductions in accordance withthe PAYE provisions of the Income Tax hssessment Act 1936.By virtue of sub-section 25lR of that Act, tax instalmentdeductions include Medicare Levy.

52.

~ an alternative, the Registrar may collect frommore than one employer. In this case paragraph lbl allowsthe Registrar to apply such modifications as the Registrarconsiders appropriate in relation to any 2 or moreemployers of the one payer/employee. The modificationsmust be made In order to ensure that the amounts collectedby automatic withholding are, in total, the same 4S thosethat would have been collected if the payer had only oneemployer.

Clause 49 ; Discharge of payer's liability to Registrar andemployer's liability to payer

This clause stipulates that where an employerapplies automatic withholding and deducts an amount fromthe salary or wages of the payer of an enforceablemaintenance liability:

the payer is discharged from his or her liabilityto make payments to the Registrar to the extent ofthe amount deducted (paragraph (all _ see alsonotes on clause 66; and

the employer is discharged from all liability topay the amount to any person other than theRegistrar (paragraph lb).

Clause SO : Pa~nt by trustees of deducted amount.

This clause applies where an amount of -.intenanceis payable to ~he Registrar by an employer who no longerhas control over the employer's property.

SubclAuse SOlI) is a technical measure designed toensure that where an amount is deducted by automaticwithholding and is payable to the Registrar by an employerwhose property subsequently vests in a trustee leg in thecase of a deceased estate or a bankruptcy), the trustee isliable to pay the amount to the Registrar.

Subclauses 50121 and 1)1 are complementaryp~ovision. to Bubclause (1). Subclause {21 p~ovides thatan amount payable to the Registra~ by a trustee undersubclause (II has priority over all other debts except adebt payable by a trustee to the Commissioner of Taxationundor Bubsections 22lP(11, 22lYHJ(31, or 22lYHZD(31 of theIncome Tax Assessment Act 1936. The effect of subclause(21 is to ensure that the property will be apportioned toeach or all of the debts, as the case may be,

53.

The priority accorded the Registrar by subclause(2) is limited in certain instances where the propertyvests in a trustee of an estate,of a bankrupt or aliquidator of a company. Subclause ()1 ensures that atrustee or liquidator is entitled to recoup any costs,charges or expenses of the administrator of the trustestate or the winding up of the company, as the caserequires, before any amount payable under this section.

This provision corresponds and is to the sameeffect as sections 22lP, 22lYHJ and 22lYHZO of the IncomeTax Assessment Act 1936 which operate in respect ofunremitted PAYE, prescribed payments and natural resourceand royalty payments, respectively.

Division 2 - Penolties

Clause 51 : Penalty for late remittance of deductions

This clause will impose a penalty in a case wherean employer, other than the Commonwealth, deductsma.intenance from a payment of salary or wages during a. .month but fails to remit the amount to the Registrar w~th~n

the time required, i.e. by the seventh day of the next .month (see earlier notes on clause 471. The employer w111continue to be liable to pay the unremitted amount to theRegistrar - (paragraph 5l!a11 - and will also be liable topay to the Registra.r, by way of penalty

if the employer is a government body (a definedterm) an amount equal to 20\ per annu= calculatedin re~pect of the unpaid amount for the period theaaount remained unpaid - ($ubparaqraph (b)!i11; and

if the employer is not a government body, anamount referred to as the "relevant penaltyamount" equal to 20\ flat of the unpaid amount(sub-subparagraph (bl(iilIA11, plus an am~u~t

equal to 20\ per annum of the amount rema1n1ngunpaid in relpect of both the unpaid amount andthe relevant penalty amount, allo calculated forthe period that the unpaid amount remained unpaid(sub-subparagraph {b)(ii1(Bl.

Clause 52 : Penalty for failure etc. to make deductionsfrom salary or wages

Clause 52 statutorily imposes a penalty on anemployer who fails to meet the obligations created for theemployer under Division I of Part IV. This clause app~ieswhere an employer fails to make the appropriate deduct10nof maintenance from a payment of salary or wages.

an

'0iain

54.

By paragraph (AI of this clause, where anemployer, other than the Commonwealth, makes a payment ofsalary or wages and contravenes subclause 46(1) by failingto make a deduction of maintenance, the employer 1s liableto pay to the Registrar, by way of penalty, an amount equalto 20\ per annum of 80 much of the undeducted amount CISremains unpaid, calculated from the date when thededuction, if made, should have been paid to theRegistrar. By virtue of su~lause 46(1), this date will,in practice, be the seventh day after the end of the monthin which the salary or WAges were paid.

Paragraph (b) provides an additional penalty, inthe CAse of an employer other than a government body, ofamount equal to the amount which the employer failed todeduct.

Clouse S3 ; Penalty in relation to certain unexplained

to payto the

an amount is received by the Registrar underparagraph 47(1)(al from an employer other than theCommonwealth in relation to a month (paragraph.!All;

the employer contravenes paragraph 47(1)lb) _ i.e.the employer does not furnish in the approvedtorm, the particulars required by the form(paragraph <b); and

an amount is appropriated out of the ConsolidatedRevenue Fund under paragraph 78(3)(d) in relationto the employer in relation to the month(paragraph (cl I.

Clause 54 I Remission of certain penalty amounts

By this sub-clause, the authority of the Registrarremit penalties (referred to as "late payment penalty")restricted to certain circumstances that parallel thoseother Acts of which the Commissioner has the general

55.

administration e.g., the Income Tax A~sessment Act 1936,which authorises, inter alia, remission of certain amountsof late payment penalty 1n respect of the PAYE provisionsof that Act.

Under paragraph !lila), the Registrar will bepermitted to remit late payment penalty payable by anemployer if the Registrar is satified that thecircumstances that led to the delay in payment of thealllOunt deducted were not caused by an act or omission ofthe employer and the employer has taken reasonable actionto mitigate the effects of the circumstances that led tothe delay.

Paragra~h (ll(b) will authorise the Registrar toremit the late payment penalty, in appropriate cases,notwithstand~ng that the circumstances which led to thedelay in payrllent of the principal alllOunt were caused by theemployer, e.g., a miscalculated business decision.R~ssion of the late payment penalty will be possible ifthe Registrar is satisfied that the employer has made areasonable attempt to mitigate the effects of thosecircumstances and that it is fair and rea~onable to re=itthe a=ount imposed in view of the nature of thosecircumstances.

By paragraph <ll(C) the Registrar will be able toreait late payment penalty where the Registrar considersthat there are other special circumstances to justify thatcourse.

The automatic imposition of late payment penaltywould, in some cases, result in very small amounts ofpenalty being payable. Paragraph (l)lc) would permit theRegistrar to remit those small amounts if collection wouldnot be cost effective for example.

56 • 57.

dismiss~, or threatens to dismiss, another personfrom the other person's employment <paragraph (b»;

terminates, or threatens to terminate the paymentof salary or wages to another person (paragraphJ..!W..

intimidates or coerces, imposes any pecuniary orother penalty on or takes any other disciplinaryaction in relation to, another parson;lparagraph ('II;

prejudices, or threatens to prejudice, anotherperson in the other person's employment orotherwise in the receipt of salary or wages;(paragraph Cd}); or

of

Subclause III proposes that an employer who:

refuses to employ, or to pay salary or wages to,another person (paragraph {all;

57 : Employers not to pre1udice employees becauseregistrable maintenance liabilities etc.

Division 3 - Provisions applicable to employers

The purpose of this clause is to protect anemployee who is a payer of a registrable maintenanceliability from discrimination by his or her employer.

Clause

Clause 56 : Penalties to be alternative to prosecution forcertain offences

While subclause (1) will re15t.rict the Registrar' 8authority to remit penalties other than the undeductedamount, relevant penalty amounts and appropriated amounts,subclause <2> will permit the Registrar, for such reasons48 the Registrar thinks sufficient, to remit the whole or apart of the undeducted amount, relevant penalty amounts andappropriated amounts imposed by sub-subparagraph51(b)(ii)(Al, paragraph 52 (b) or clause 53 l see notes onthat sub-subparagraph, paragraph and clause.

Subclause (3) requires the Registrar to give awritten notice to the employer where a decision is made toremit part only of an amount payable as mentioned insubclause (2) or not to.remit in any part of such an amount.

Clause SS : Reduction of late payment penalty wherejudgment debt carries interest

This clause will ensure that an amount of penaltyfor late payment under sub-subparagraph SlCb)(ii)CB) orparagraph 52(a) continues to accrue in respect of unpaidprincipal amounts notwithstanding that judgment for paymentof the principal amount has been given or enttired in acourt. When in such a case, the judgment debt itselfcarries interest, the penalty otherwise payable is to bereduced by the amount of judgment interest that relates tothe unpaid amount.

By clav,e 56, an amount of penalty will not bepayable under the automatic withholding provisions if aprosecution is instituted against the employer for theoffence to whiCh the penalty relates. Where an employerhas paid an amount of penalty and a prosecution isinstituted against that employer for the particularoffence, the amount paid is to be refunded or applied bythe Registrar in total or partial discharge to a debt dueto the Commonwealth by the person under this Bill. If theprosecution is withdrawn, the employer would again becomeliable to pay penalty amount.

because the other person is the payer of aregistered maintenance liability <paragraph <fl) or is ane.ployee in relation to whom a notice has been given to theeaployer under subsection 4Slil (paragraph 19l) is guiltyof an offence punishable on conviction by a fine notexceeding $2000.

Subclause (2) states that in a prosecution for anoffence under the previous subclause, it is a defence ifthe defendant proves, on the balance of probabilities thatthe action was not motivated (either wholly or in part) bya reason specified in that subclause. However, it is notnecessary for the prosecutor to prove the reason for thedefendant's action.

By subclause tJ) the court may order the paymentof compensation to the person for loss or damage suffered4S a result of any such discrimination (paragraph (a).The court may also order the taking of action to remedy or. \

58. 59.

The Registrar may notify a person that retentionof the records is not required. Also, retention of recordsi. not required where the person is a company that has goneinto liquidation and has been finally dissolVed.

The records ~ust be kept in the English languageor, if not in written form (e.g. in computer's memory) beIn a torm which is readily accessable and convertible intoEnglish. The records are to be retained for a period of 7years.

redu~e the lOBS or damage suffered by the person 48 aresult ot the act (e.g. reinstate the employee where he orshe has been dismissed) (paragraph cbl). Both paragraphs57f))(&) and (b) only arise where the employer is convictedof an offence against subclause (II.

Clause 58 I Employers not to disclose info~tion etc.

This clause places an obligation on employers notto disclose to a second person, any information in relationto an employee who is a payer. A penalty of 51000 isprovided for contravention of this obligation.

Any person who is or has been an employer(paragraph (a» or a person employed by, or performingservices for, an employer lparagraph (bl) shall notOrdinarily divulge or communicate to a second person anyinfo~tion in relation to the affairs of a third persondisclosed or obtained because of automatic withholding.Info~tion may be disclOSed, however, when it is inconnection with the carrying on of the employer's affairs

Clause 59 I Becords to be kept and preserved by employers

This clause requires an employer to keep recordsthat record and explain all amounts deducted, or requiredto be deducted, frOm salary or wages under section 46 endother acts engaged in by the employer, or required to beengaged in by the employer, for the purposes of automaticwithholding.

Clause 61 : Access to premises etc.

Subclause 61(1) will require that, for automaticwithholding purposes, an officer duly authorised by theRegistrar be given entry, at all reasonable times, to landor premises, free access at all reasonable times to allbooks, records and other docu.ents held by any person, andthe right to inspect, examine or make copies or extractstherefrom.

By sUbclpyse 121 of this clause, an officer is notentitled to remain on land or premises unless a writtenauthority signed by the Registrar is produced on therequest of the occupier.

Subclause <31 will require any occupier of land orpremises, entered or proposed to be entered by a dulyauthorised person for the purpose of enabling the effectiveexercise of the officer's powers under this section, toprovide that officer with all reasonable facilities andassistance that the occupier is reasonably capable ofproviding. The maximum penalty on conviction for failureto comply is a fine of 51,000.

Clause 62 : Public officer of company

For the purposes of the Income Tax Assessment Act~, every company carrying on business or derivingproperty income in Australia must, unless specificallyexempted, at all times have a public officer. The publicofficer of a company is answerable for the doing of allsuch things as are required to be done by the company underthat Act and, if in default, is liable to the samepenalties.

Clause 50 : Incorrectly keeping records etc.

Subclause 60111 will make it an offence for anemployer, who is required by clause S9 to keep records, tokeep them in such a way that they do not correctly recordor explain the matters to which they relate. The maximumpenalty on conviction for an offence against this subclauseis a fine of S2000.

Subclause 121 of this clause states that it willbe a defence if the employer proves on the balance ofprobabilities that the employer did not knoy and could notbe reasonably expected to have known that the record towhich the prosecution relates did not correctly record andexplain the ~tter or act to which the record relates.

for failure toconvictionof 52000.

The maximum penalty onwith clause 59 is a finecomply

60 " 61.

out

or credit by theaffected by anybehalf .

The application of the paymentRegistrar under this clause will not ~direction given by or on the employer s

an employer owes 2 or more debts to theCommonwealth - P4ragraph 65<a);

SOIlle amount is paid to, or credited by, theRegistrar in satisfaction of all or a pa.rt ofthose debts - paragraph 65<b>; and

the total debt of the employer e.ceeds the amountpaid to, or credited by, the Registrar - paragraphlli£l.

"11When these circumstances occur, the clause W1operate in such a way that the Registrar may -

apply the amount paid, or credited in partialdischarge of the total debt - paragraph 65<dll and

recover the balance - paragraph 65Ie/.

or more debts due

This cl~use allows the Registrar to apply amountsreceived from an eroployer under this pa~t ~ ~Yd:~u~;i~:btsfrom salary or wages of employees - aga ns .of the employer to the Coromonwealth under this Part 1nwhatever manner the Registrar chooses.

Paragraphs la), (b) and (CI of this clause setthe circumstances in which the operation of this clausewill be invoked. They are where

Division 4 - Miscellaneous

Clause 64 I Amounts payable under past debts due toColl\lft.onwealth

By this clause, amounts payable to the Registrarnder this Part are to be debts due to the Commonwealth.

~he effect of this clause is for amounts deducted ~r' or

:ee:~~~f:;e~~~b~: :~~;~Yg~~i~~~~r2D~~;s~~~~e~~s~ue ~~COllDl\onwealth.

1 i of amounts paid or credited where 2Clause 65 : Apo leat on __

Subclause. 121 proposes that service of anydocument or requisition le.g. under clause 120) at theaddress for service of the public officer or on the publicofficer is sufficient service on the com~ny. If there isnot a public officer at any time, service on any personacting or appearing to act in the COm~ny's business issufficient.

By virture of the operation of subclause Ill, theperson who Is the public officer of a company for thepurposes of the Income Tax Assessment Act 1936 is thepublic officer of the company for the purposes of thisBill. The address for service of the public officer underthat Act is also the address for service under this Bill.

The public officer is answerable for the doing ofall things as are required to be done by the com~ny underthis Bill and, in case of default is liable to the sa_penalties: sYbclause 131

Subclause (4) stipulates that everything requiredto be done by a public officer in that capaCity shall bedeemed to have been done by the company.

Subclause lSI provides that this Bill applies inrelation to the company as if there were no requirement toappoint a public officer if at any time there is not apublic officer.

The cODlpany is deemed to be liable jointly withthe public officer for any penalty imposed on the publicofficer .s a result of any proceedings taken under thisBill against the public officer: subclause 16l

Subclause (7) qualifies the operation of clause 62by·providing that if the Registrar thinks fit, any notice,process or proceeding under this Bill may, instead of beingserved on or taken against the public officer, be served onor taken against another officer of the company, anydirector or secretary, attorney or agent of the company.In such a case, that person has the same liability inrelation to the notice, process or proceeding as thecompany or public officer would have had if it had beengiven to or taken against the company or public officer.

Clause 63 I Public officer of trust estate

The provision~ of this clause, which iscomplementary to clause 62, are to the same effect and forthe same purpose a~ that clause except they provide for theparticular circumstance of a trust estate rather than acompany (see earlier notes on clause 62).

52.

PART V - PAYMENT AND RECOVERY OF CHILDSUPPORT DEBTS

Clause 66 ; When child support debts due and payable

This clause has general application in relation toa child support debt. It provides the rule for payment, inrelation to such a debt, so that where the debt arises inany calendar month, it is due and payable on the seventhday of the following month. By this clause all payers arerequired to remit their child support debts by the seventhday of each month. For payers who are not employees or whoare employees but are not subject to automatic withholdinga direct remittance to the Registrar will be required each.cnth. For payers who are employees that are subject toautomatic withholding, the deduction by the employer underPart IV of the Bill will discharge those payers liabilityunder this clause: see notes on clause 49 in that part.

Clau,e 67 : Penalty for late payment of child support debts

The amount of a child support debt may not alwaysbe substantial in terms of its quantum, but it is, ofcourse, always significant to the payee who usually dependson receipt of the amount. While it is customary to providea late payment penalty for debts to the Commonwealth thatare overdue, an interest component lll4y not, in itself,prove to be sufficient incentive for payers to make regularand timely remittances (see notes on paragraph 3(l)(b) ofthe Bill).

Accordingly, Aubslayae 67(1) establishes a penaltyon a person liable to pay a child support debt, where thatdebt, in relation to a month, is unpaid after the seventhday of the following month, of the greater of -

520 (P9ugraph lalll or

a 20\ per annum interest component <paragraph (bl).

Subclause (2) formally provides for any amountpayable to the Registrar under subclause (1) to be a debtdue to the Commonwealth.

Clause 68 ; Remission of late payment penalty

This clause will empower the Registrar to remitpenalties payable by a person under clause 67 (see notes onthat clausel.

The authority of the Reqistrar to remit thosepenalties (in this clause referred to as "late paymentpenalty") is restricted to certain circumstances.

63.

Under paragraph (A) the Registrar will bermitted to remit late payment penalty payable by a p~r80n

t~t~~ ~~~i~~~:~ i~ ~~~~~ft~~~ ~~~l~i~~;m~;~n~:~ttw:;e~;s~~u~:~ ~~k:~ ~~~s~~a~~;s:~~~o~ft~h:i~~:~~ ~~: ~~~ect9of the circumstances that led to the delay.

Paragraph (bl will authorise the ~egi9trar toremit the late payment penalty, in apprO~71~t~ ~a~~9thenotwithstanding that the circumstances W LC e ed bydelay in payment of the child support debt wer~ cau~ll bethe payer. Remission of the late payment pena ty w

"bi if the Registrar is satisfied that the payer has~~:1a ~eaBonable.attemPt to mi~igate the eff~~tBtOf ~~~~e

ircurnstances and that it is [aLr and reasona e 0 r~he amount i~posed in view of the nature of thosecircumstances.

By paragraph (C) the Registrar will be abl~ topa---nt penalty where the Registrar cons1ders

remit late ..-- j if thatthat there are other special circumstances to ust ycourse.

Clause 69 : Reduction of late paymen( penalty wherejudgment debt carries interest

Clause 69 will ensure that an amount of penaltyfor late payment under clause 67 continues to accrue inrespect of an unpaid child support debt notwithstandingthat judgment for payment of that debt has been given orentered in a court. Where, in such a case, the judgrnentbledebt itself carries interest, the penalty otherwise ~y~is to be reduced by the amount of judgment interest t arelates to the unpaid child support debt.

64.

Clause 70 I Apportionment of payment between payees

It is possible that a payer under the Bill willhave more than one child support debt (paragraph 701a) I andfor those debts to relate to 2 or more registrablemaintenance liabilities but with different payees(paragraph 70eb)). This clause provides a statutory ruleto be applied in these cases where an amount is to be paidto, or cr~ited by, the Registrar in respect of those debtseparagrap~ 70(c» and the a~unt to be paid to. or creditedby, the Registrar is less than the total debt. Forexample, a payer owes 5100 for payee A and 5200 for payeeB. and only remits 575 to the Registrar.

By this clause, payee A would receive 525 andpayee B, S50. In other words, a strict apportionmentaccording to the amount of each payee's debt is to apply inrelation to the 575 paid by the payer. This result is toapply irrespective of any direction given by the payer inrelation to the amount of the payment.

Clause 71 • Direct payments to payee

. Clause 30 specifically provides for debts payable~n relation to an enforceable maintenance liability to beunenforceable by the payee as against the payer since thedebt will be a debt due to the Commonwealth.

However. circumstances may arise whereby the payeeis, for example, in urgent need of his or her maintenance,and the payer agrees to pay an aJllOunt of maintenancedirectly to the payee. This clause sets out the rules tobe followed by the Reqistrar in such cases.

Under the clause. the Registrar may credit adirect payment to a payee by a payer against the payer'sliability to the Commonwealth provided that _

the amount received by the payee is intended byboth the payer and payee to be in complete orpartial satisfaction of the payer's liability tothe Registrar (paragraph 71(a»); ~

the Registrar is satisfied, On receipt of anapplication by either the payer or payee thatcredit should be given for the amount, having dueregard to the special circumstances of the case(paragraph ?lIb)}.

65.

Clause 12 : Application of tax overpaYJ!!ents

This clause is an aid to efficient collection ofchild support debts by the Registrar. It provides, inbroad te[lllS that where on amount is owing to a personunder an AC~ of which the Commissioner of Taxation has thegeneral administration (paragraph 72<0.)) and a debt is dueto the Commonwealth under this Bill by that person(paragraph 721bll, the RQ91strar may apply the amount owingto the person against the amount of the debt. This clauseoperates notwithstanding anything contained in any Actadministered by the Commissioner or any other law of theCommonwealth.

PART VI - PAYMENTS TO PAYEES

This Part contains two Divisions which set out theaccounting treatment to be accorded child support debtscollected by the Registrar and the rules to be applied toensure that these moneys are distributed to payees in themost timely manner.

Division 1 of this Part - Establis~ent andOperation of Trust Account - establishes and governs theoperation of the Child Support Trust Account, which will beused to account for amounts collected and distributed bythe Registrar. It also recognises the trust nature ofmoneys to be collected from payers.

Division 2 - Pa~ents to payees - sets out therules to be applied in paying mointenance collections topayees. Payment will be made, in practice, by theSecretary of the Department of Social Security on the firstWednesday of each month. Generally speakin9. all amountsaeducted by employers and paid by payers during the paymentperiod will be distributed by the Secretary unless thepayment is received in respect of a liability not yet due.Appropriations will be made from the Consolidated RevenueFund to cover certain shortfalls in remittances byemployers and where the Registrar is satisfied that ~hildsupport deductions have been made from the employeessalary or wages but the employer has failed to remit thosedeductions to the Registrar by the ·closing day· : seeearlier notes in subclause 4(1) on this term.

66.

In this way persons dependent on the regular receipt ofmaintenance will generally not suffer hardship simplybecause of an employer's non-compliance with the provisionsof the Bill.

Division 1 - Establishment and operation of Trust Account

Clause 73 ; Establishment etc.

By subclause (1) of this clause, the Child SupportTrust Account is created.

By subclause (2), the Child Support Trust Fund isto be a trust account for the purposes of section 62A ofthe Audit Act 1901. This means that moneys standing to thecredit of the Child Support Trust Fund will be deemed to bemoneys standing to the credit of the Trust Fund. The TrustPund is one of the three separate funds that make up theCommonwealth Public Account. The other two funds are theConsolidated Revenue Fund and the Loan Fund.

Clayse 74 ; Payments into Trust Account

This clause identifies the amounts which, whenreceived by the Registrar, may be paid into the Trust Fund.

Subclause 7411} provides for payment of thefollowing s=ounts into that Fund -

payments for child support debts from directpayers and employers - paragraph Is);

ex-gratia payments made voluntarily by payers fortranSmission to payees - paragraph (bl,

amounts collected from overpayments made topersons out of the Trust Fund - paragraph (cll and

amounts appropriated from the Consolidated RevenueFund in relation to unremitted deductions ofemployers (see later notes on clause 77) andunexplained remittances from employers (see alsolater notes on subclause 7B(3)}.

If a payer sends one amount to the Registrar andpart only of that amount appears to be an amount covered bysubclause (1), then subclause (2) authorises the Registrarto determine the proportion of the total amounts fallingwithin subclause (1). Any determination of the Registrarunder this 8ubclause must be in writing.

67.

~lause 75 ; Payments out of Trust Account

This clause is complementary to clause ?4 in thatif specifies the purposes for which moneys standlng to thecredit of the Trust Account may be applied. They are asfollows

to make payments to payees of registeredmaintenance liabilities under subclause 75Cl}paragraph (a).

to pay to payees ex-gratia payments received bythe Registrar from payers - paragraph (b);

to refund to persons amounts paid into the TrustAccount that were not child support debts or otheramounts the Registrar was entitled to receiveparagraph (C); and

to reimburse the Consolidated Revenue Pund inrelation to amounts received from employers andpayers in relation to appropriations required byclause 77 or subclause 7B(3) (see later notes onthat clause and subclause - paragraph cd)

Division 2 - Payments to payees

This Division covers all payments to payees thatthe Registrar has collected whether by deduction tromsalary or wages of employees or directly from the parer.It also provides for payments to be made from conso11datedrevenue in certain circumstances (see later notes in thisDivision).

Clause 75 ; Entitlement of payees to be paid collectedamount'

This clause sets out the entitlement of payees toreceive maintenance which has been collected by theRegistrar on their behalf and specifies a tt.ing mechanismfor such payments.

Subclause 76(1) delineates, subject to subclause(2) anct subclause 79(2) (see later notes), the entitlementof a payee of a registered maintenance liability to be paicton or before the first Wednesday following the end of eachcalendar month (referred to as the ·current month~l, thetotal of the following amounts -

amounts deducted by an employer by means ofautomatic withholding during the month immediatelypreceding the current month (referred to as theprevious month) (paragraph (al)l

'8.

amounts received by the Registrar (other than bymeans of automatic withholding) in payment of achild support debt during the payment period i.e.the period beginning on the day following theclosing day (4 defined term in subclau~e 4111 ;see notes on that subclause) of the previous monthand ending on the closing day of the current month(paragraph (b»l and

to the extent that they have not previously beenpaid to the payee, any arrears i.e., amountscollected by the Registrar that were deducted byan employer by means of automatic withholding(aubparagraph (Clli») or received by the Registrarother than by means of automatic withholding('ubparagraph (c)lii»).

Subclause 76(1) also makes it elear that a payeeia not entitled to receive any payments in advance, i.e.any amounte that were not due and payable by the payer onthe seventh day of the current month.

Subject to the regulations made under the Bill,subclause 76(2) provides that where the regulationsprescribe an amount for the purposes of this subclause, aperson ie not entitled to be paid the amount that thatperson would nornally be entitled to receive because ofsubclause 76(1) pt that time.

The purpose of this Subclause is to defer paymentsof very small amounts of maintenance - e.g. the payer of aregistered maintenance liability may only make a payment ofSO cents in a particular month. Although the Registrarwould take recovery action for the balance of the childsupport debt the Registrar would not ordinarily pay overthe SO cente at that t~. If the payer had a continuingliability to the Registrar the SO cents would be includedin any subeequent payments made to the payee. If thepayer's liability had ceased, the reqister would pay the 50cents to the payee.

Clause 77 ; Unremitted deductions made by employers

Clause 77 operates to appropriate an amount out ofthe Consolidated Revenue Fund where the R&gistrar issatisfied that the employer has made the required childsupport deductions fram salary and wages paid to ~ployees

but has failed to pay the deducted amount to the Registrarby the closing date: see notes on clause 76. Theappropriated amount will be paid into the Trust Account.

".This provision ensures that payees who oro relying

upon the regular and timely receipt of child support willnot suffer hardship where emplqyers do not fulfill theirobligations to make payment by the due date. Such~ployer. will be liable for administrative penaltiesunless the employer is prosecuted for an offence undersubclause 47(1).

Clause 78 ; unexplained remittances from employers

This clause operates to reduce, as far a8practicable, the inconvenience to payees when an employerdoes not provide the Registrar with full details of apayment and the Registrar is unable to obtain the requiredinformation by the closing date.

Subclause 78(1) provides that this clause applieswhen an employer has paid an amount to the Registrar buthas failed to furnish the full particulars required byparagraph 47(11(bl and the Registrar is unable to obtainthe required details by the closing date.

Subclause 78(2) empowers the Registrar to treatthe amount received as the total deductions made by theemployer and then to apportion the amounts between therelevant employees on an appropriate basIs.

Subclause 78()1 will apply when the total amountexpected by the Registrar from an employer (that is theaggregate of the amount expected in respect of eachemployee) does not exceed the actual amount received fromthe employer by more than the product of the number ofemployees and a prescribed amount. In these circumstancesan amount will be appropriated from Consolidated RevenueFund and paid into the Trust Account under paragraph78()(d). The effect of this appropriation will be toensure payment of the proper amount to payees.

Where an amount is appropriated from ConsolidatedRevenue Account under paragraph 78(3)(d), the employer,whose failure to furnish information resulted in theappropriation, may be liable for a penalty under clause 53equal to the amount of the appropriation.

70 •

Cl~use 79 : Qverpayment. of payees

By subclause 79111, where the payee is paid anamount under subclause 76(1) and _

the payee was not entitled to be paid the amount(paragraph lalli or

because of a variation to the particulars of theentry in the Child Support Register in relation tothe liability, the amount is repayable by theRegistrar to the payer of the liability (paragraph112.V.

that amount is repayable to the Secretary to the Departmentof Social Secu.rity and is a debt due by the payee to theCOlMlOnwealth.

By subclause 79(2) where there is III continuingliability and the payee is entitled to receive furtherpayments under subclause 76(1), the amount of theOVerpayment may be recovered by reducing each payment bythe amount lif anyl determined in writing by the Secretary.

,

71.

PART VII - REVIEW OF DECISIONS

This Part contains two Divisions

Division 1 - Decisions reviewable by thecourtsl and

Division 2 - Decisions reviewable by theTribunal.

The court to which appeals may be made underDivision 1 by parties aggrieved by a decision of the .Registrar on an objection to which that Division app11es,will be a court e~rcising jurisdiction under Part VIII ofthis Bill. These courts will be the same as thoseexercising jurisdiction under the Family Law Act 1975.These proceedings will therefore afford the same secrecyprotection to parties as if the proceedings were institutedunder the Family Law Act. It will also allow the F~ly

Court to continue to exercise control over orders made and.aintenance agreements registered or approved under thatAct.

Division 2 provides for the Administrative AppealsTribunal to review decisions made by the Registrar inrelation to the remission of administrative penalties.

Division 1 - Decisions reviewable by the courts

Clause 80 I Notice to be given to payer and payee inrelation to decisions reviewable by the courts

SUbclayse BOll) requires the Registrar to notify,in writing, the payer and payee of a registrablemaintenance liability of the particulars entered in theChild Support Register in respect of the lia.bility as soonas practicable after the liability has been registered or,when a variation has been made to a registered maintenanceliability, of the variations made.

By 'Vbclpuse 80(21, the Registrar is required toinform the payer and payee, by a notice in writing, of thedecision to delete the entry in the Register. This noticeis to be served as soon as practicable after the entry hasbeen deleted.

When the Registrar makes an appealable refusabledecision (see notes on that term in subclause 4(1)), excepta decision to either disallow an objection or allow it inwhole or in part or a decision relating to the recovery ofdebts owing for at least 6 months, subclaufe 80{J) operatesto require the Registrar to notify both the payer and payeein writinq of the decision as soon as practicable after thedecision has been made.

I

72. 73.

The grounds of the objection are required bysubclause 84(2) to be stated fully and in detail.

h 1dto variations t

: Ob1ections relating to appealable refusal

ause 83 ! Ob ections relatin

decisions

Subclause SStl) provides a right of objectionagainst a decision of the Registrar that is defined as 6n-appealable refusal decision" in subclause 4~11 :.see noteson that definition in that subclause. Decis10ns 1n thiscategory are those made by the Registrar relating to therefusal to register a registrable maintenance liability, tovary particulars, to allow credit for a ~irect payment by apayer to a payee, to determine an object1on by eitherdisallowing it or allowing it in whole or in part and tocollect certain debts that are unpaid after at least 6months. A payer or payee who is dissatisfied with the

Clause 85

Support Register

Subclause 83(1) provides a right of objectionhere the Registrar varies particulars already. entered in

~he Child Support Register in respect of a reg1strablemaintenance liability. A payer or payee who isdissatisfied with the variation made by the Registrar toany particulars as they appear in the Register afterariation may lodge an objection in writing against the

v riation .ade to those particulars. The objection should;: lodged within 28 days of the service of the notice ofvariation to the particulars.

The grounds of the objection are required bysubclause 8)(2) to be stated fully and in detail.

Subclause 831)) operates to limit the right ofobjection to the particulars actually varied and to thoseparticulars that are affected by the variation.

Clause 84 : Objection against deletion of entries from theChild support Register

Subclause 84(1) provides a right of objectionwhere the Registrar deletes an entry in relation to aregistrable maintenance liability from the Child ~upportRegister. A payer or payee who is dissatisfied w1th thedeletion of the entry may lodge an objection against thedeletion. The objection must be in writing and should belodged within 28 days of service of the notice of thedeletion of the entry.

Subclouse 82(1) provides a right of objectionwhere the Registrar registers a registrable maintenanceliability. A payer or payee that is dissatisfied with theregistration of a liability, or with any of the particularsentered in the Register in relation to the liability, maylodge an objection. This objection is required to belodged within 28 days of the service on him or her of thenotice of the particulars that were registered. It must bein writing and it must specify as to whether the objectionis against registration or against any of the particulars.

The grounds of the objection are required bysubclause 82(2) to be stated fully and in detail.

SUbclayse 82(3) enables an objection to be madeunder subclause (11 on the ground that the entry in theChild Support Register is not a registrable maintenanceliability.

Clause 82 ! Ob1ections relating to registration

Subclause 82(4) operates to make it clear thatsubclause (3) does not imply any limitation of the groundsthat may be relied on for objections lodged under subclause(1) •

(a) an objection may be lodged with the Registraragainst the decision 1n respect of which thenotice was served; and

Subclause 81(1) provides that a notice that hasbeen served on a person under clause 80 will inelude or beaccompanied by a statement advising the person that -

(bl should the person be aggrieved by theRegistrar's decision on the objection, thepersQn may lodge an appeal against thedecision to a court exercising jurisdictionunder this Bill. Such an appeal right issubject to the Family Law Act 1975.

Subclause 81(2) ensures that the failure by theRegistrar to furnish the statement required under subclause(1) does not affect the validity of the Registrar'sdecision on the objection.

Clouse 81 ; Statement to accompany notices

74.

decision of the Registrar may lodge an objection againstthese decisions. The objection must be in writing and mustbe lodged within 28 days of the service of the notice ofthe decision.

By subclause 85(21 an objection against a decisionof the Registrar relating to the collection of childsupport debts that have been owing for at least 6 months(paragraph (e) of the definition of "appealable refusaldecision") may only be lodged by the payee. The objectionmust be lodged within 28 days of the decision of theRegistrar not to take action to recover the debt firstcomes to the notice of the payee.

The grounds of the objection are required bysubclause 85(3) to be stated fully and in detail.

Clause S6 I Registrar to serve copy of ground, of ob1ectionon other party

Subclause 86(1) imposes an obligation on theRegistrar to serve a copy of the grounds of an objectionlodged by a payer on the payee. The Reqistra.r is requiredto carry out this action forthWith.

Subclause 86(2) mirrors subclause 86(1) in that itrequire. the Regi'trar to serve a copy of the grounds of anobjection lodged by a payee on the payer forthwith.

Subclause 86(3) allows a person on whom a copy ofthe grounds of an objection have been served to lodge anotice in writing in opposition or support of theobjection. This notice must be lodged with the Registrarwithin 28 days of the service of the copy of the grounds ofthe objection.

The grounds of the notice in opposition to or supportof the objection are required, by subclause 86(4), to bestated fully and in detail.

Clause 87 I Consideration of objections by Registrar

Subclause 87(1) requires the Registrar to considerboth the Objection lodged and any notice lodged inopposition or support of the objection. The Registrar isfurther required to determine the objection by disallowingit or allowing it in whole or in part within 60 days oflodgment.

The Registrar is required, by subclause 87(2), toserve written notice of the decision on the person wholodged the objection and, if a notice of opposition orsupport was lodged, on the person who lodged the notice.

75.

By subclause 87131 a statement 1s to be includedwith the objection decision informing the recipient that anappeal may be made to a court hav~ng jurisdiction underthis Bill. This right of appeal ~s subject to the FamilyLaw Act 1975.

Subclause 87(4J ensures that the validity of theobjection decision is not affected by the failure of theRegistrar to provide the statement required by subclause(3) •

Clause 88 : Appeal aaainst decisions on ob1ections

Subclause 88(1) allows a person who is aggrievedby the Registrar'~ decision on an objection to appealagainst the decision to a court having jurisdiction underthis Bill.

Subclause 88(21 operates to limit the right toappeal against a decision of the Registrar concerning thecollection of child support debts owing for at least 6months (see paragraph (8) of the definition of "appealablerefusal decision") to the payee under the liability.

Subclause 88<31 recognisea that a court hearing anappeal pursuant to subclause 88(1) is subject toconstitutional lilllitations, in that it is not open to thecourt to consider the merits of an objection decision inthe same manner as would the Tribunal under theAdministrative Appeals Tribunal ~ct 1975. SUbject to thatlimitation, however, it is intended that the courtsexercising jurisdiction under the Bill should deal withappeals on the widest possible grounds, including, but notli.tted to, the question whether the decision appealedagainst was, in all the circumstances, correct, in fact, inlaw : Po!!ragraph (a).

Paragraph (bl of the subclause ensures that aState court exercising juriadiction under the Bill is notprevented from granting relief by way of an injunction, thegrant of a prerogative or statutory writ or the making of adeclaratory order.

Clause 89 : Applications for extensions of time

Clause 89 enables an application to be made for anextension of time to be granted for lodging an objection.

Subclause 89(1) allows a person where the timelimit for lodging objections has expired to lodge anapplication for an extension of time with the Registrar ..This application must be in writing and must be accompan1edby the objection.

76.

By eubclouse 89(21 it is necessary for the perSOn, inthe application for the extension of time, to provide fulldetails of the reasons the objection was not lodged withinthe 28 day time limit.

ClAuse 90 : Copy of application for extension of time to be

SubclAuse 911l> requires the Registrar to considerthe application for An extension of time in which to lodgeAn objection And to either grant or refuse the Applicationwithin 60 days of its receipt by the Registrar. If theapplication is granted the Registrar is required to dealwith the. objection within 60 days from the dAy theapplicAt10n 1a refused.

77.

By subclause 91()) the Registrar is required tonotify the person making the application and any person wholodged a notice in relation to the application of thedecision. Where an application is granted subclause 91(4)operates to treat the objection as valid.

Subclause 91(5) confers power on theAdministrative Appeals Tribunal to review decisions made bythe Registrar on applications for extensions of time tolodge objections. Subclau,e 91(6) i. a standard provisionensuring consistency on the conferral of jurisdiction onthe Tribunal.

clause 92 : Powers of court on appeal

Clause 92 ~onfers on a court hearing an appealarising from an objection lodged under this Division, thepower to make any order it considers appropriate.

ClAuse 93 : Implementation of decisions

This clause applies when the court has made adecision on a matter referred to it under this Division.

Subclause 93(1) requires the Registrar to take anynecessary action to give effect to a decision handed downby a court as 500n as the decision is final. Subclausei1!1l sets out the time at which such a decision becomesfinal. In the case of a decision not made by the Fullcourt of the Faaily Court, the decision becomes final whenthe period during which leave for an Appeal against thedecision could be made expires. If the decision is onemade by the Full Court of the Family Court which is notappealed, the decision beco.es final after 30 days if anApplication for special leave to Appeal to the High Courtis not made within that 30 day period.

Clause 94 : Pending appeal Dot t9 affect registration. etc.

This clause operates to allow the particularsentered in the Child Support Register that relate to aregistrable maintenance liability to stand, even though anappeal to a court or a review by the Tribunal relating tothe registration of the liability or any of the particularsis in course.

Where the Registrar has not granted or refusedapplication for an extension of time within 60 dayssubclause 91<2> deems the application to be refused:

anSubclause 94(1) makes it clear that amounts

payable under the liability, including penalties, continueto be payable even though the regiatration or any of theparticulars are the subject of An appeal to a court or.review by the Tribunal. By 8ubclauee 94(2) the entry 1nthe Register is taken to relate to a registrablemaintenance liability until A court finds otherwise.

I

78. 79.

Division 2 - Decisions reviewable by the Tribunal

the person may lodge an objection against thedecision - paragraph (al; and

When the Registrar makes a decision on anapplication of time for lodging any objection (whether theobjection decision is reviewable by the courts or theTribunal), subclause 96(2) requires the Registrar tofurnish the person whose interests are affected by the

Clause 96 I Statement to accompany notices

When the Registrar makes a reviewable decisionsubclause ?illl requires that the person whose interestsare affected be served with written notice. It alsorequire. the Reqistrar to include with the notice astatement that -

Clause 98 : Consideration of objection by Registrar

Subclause 98(1) requires the Registrar to considerthe objection and to either disallow it or allow it in fullor in part within 28 days of lodgment. In the event thatthe Registrar does not determine the objection within the28 days subclause 98(2) deems the objection to have been.disallowed by the Registrar at the end of the 28 day per1od.

By sUbclayse 98()1 the Registrar is required toserve written notice of the decision on the person wholodged the objection. SYbclause 98(4) requires theRegistrar to furnish a statement with the notice informingthe person of the right to apply to the Tribunal for reviewof the decision. However, subclause 98! 5) operates toensure that failure by the Registrar to provide thisstatement does not invalidate the decision on the objection.

Clause 99 : Review of decisions on objections

Subclause 99111 enables applications to be made tothe Tribunal for review of decisions made by the Registraron objections lodged under subclause 98(1). Subclause~ serves the same purpose and is to the same effect assubclause 91(6) ; see notes on that subclause.

Clayse IOO : Applications for extensions of time

Clause lOO enables an application to be made foran extension of time to be granted for lodging an objection.

decision with a statement that, if dissatisfied by thedecision, the person may apply to the Tribunal for review.If applicable, the statement is also required to inform theperson of the right to request a statement under section 28of the Administrative Appeals Tribunal Act 1975.

By subclause 96(3) the failure of the Registrar toadvise affected persons of their objection and reviewrights does not invalidate the decision.

Clause 97 ; Objections relating to reviewable decisions

This clause provides for a person whose interestsare affected by a reviewable decision to lodge an objectionagainst the decisipn if the person is dissatisfied with thedecision. Subclause 97(1) sets out the right to objectagainst the decision and requires lodgment of the objectionwithin 28 days of the service on hi. or her of notice ofthe decision. Subclause 97(2) requires the person toprovide full details of the grounds of the objection.

thoThey are -

This clause specifies the decisions ofReqistrar that are reviewable by the Tribunal.

Clause 9S 1 Reviewable decisions defined

refusing to remit all or any part of latepayment or other penalties imposed onemployers for failing to pay amounts deductedby the due date, failing to make the requireddeductions or failing to furnish full detailsof payments made to the Registrar _ paragraphUiAlI and

refusing to remit all or any part of a latepayment penalty impoeed on a P<'-yer _oar1l9Fllph 95(bJ.

if the person is dissatisfied with thedecision on the objection, an application .aybe .ade to the Tribunal for a review of thedecision - paragraph (b).

This statement is also required to include advice that theperson .ay request a statement of the reasons for thedecision under the provisions of section 28 of theAdministrative Appeals Tribunal Act 1975, unless subsection28(4) of that Act precludes such a request being made.Subsection 28(4) operates to deny a person the right torequest a statement under section 28 if the person has beeninformed in writing of the findings on questions ofmaterial fact, referring to the evidence or other materialon which those findings were based, and the reasons for thedecision.

Clause 102 ; Implementation of decisions

to the de~~;~o~l~~s~h:m~rsihe Registrar to give effectfinal In th b 1 una aa soon as it becomesfinal"when th: ~isen~e Of an appeal, these decisions becomedecision eXPires. me or edging an appeal against the

Clause 103 I Pending review not to affect ctecision

amount ihis.clause will enable the Registrar collectionreview owdng 10 respect of the liability 4S though no

un er this Division was in course.

Clause 191

'0.

: Consideration 0' aDD11c " ,time -- a ons or e!tensiOD of

t

'1.PART VIII _ JURISDICTION QF COURTS

~ause 104 : Jurisdiction of courts under Act

This clause confers jurisdiction on those courtswhich are to exercise jurisdiction in relation toapplications under subclause 44(2) that automaticwithholding not apply and in relation to appeals undersubclause 88(1) against certain decisions of theRegistrar. Those courts are to be the same courts as thosewhich exercise jurisdiction under the Family Law Act 1915.

Subclause 104(1) confers jurisdiction on theFa=ily Court, the iupreme Court of the Norther Territory,and each Family Court of a State in matters arising undersub-sections 44(2) and 88(1). The only existing Familycourt of a State is the Family Court of Western Australia.

Subclause 104\21 invests courts of summaryjurisdiction in each State with federal jurisdiction andconfers jurisdiction on each court of summary jurisdictiOnin each Territory in relation to matters arising undersubclause 44(2) and 88(1).

Subclause 1041) provides that theGovernor-General may, by Proclamation, fix a day on andafter which proceedings, in relation to matters arisingunder subclause 44(2) and 88tl> may not be instituted in,or transferred to, a court of summary jurisdiction of aState or Territory.

Subclause 104(4) provides that any Proclamationmade under subclause 1041» may be expressed to apply inrelation or proceedings of a specified class or classes orin respect of the institution of proceedings in or thetransfer of proceedings to a court of summary jurisdictionin a specified part of a State or Territory.

Subclause 104 (51 provides that a court of summaryjurisdiction which is invested with jurisdiction in mattersarising under subclause 44(2) and 88(11 shall not exercisethat jurisdiction except in accordance with anyproclamation made under subclause 104().

Subclause 104161 provides that a Proclamation madeby the Governor-General may be revoked on and froD aspecified day. It alsO provides that on or from the datespecified the Child Support Act has effect as if therevoked Proclamation had not been made but this is withoutprejudice to the jurisdiction of courts before therevocation.

82.

Subclause 1Q4(7) provides that in respect of theconferral of jurisdiction on a court of a Territory thatjurisdiction cannot be exercised unless at least one of theparties to proceedings is ordinarily resident in thatTerritory.

Subclause 104(8) provides that the jurisdictionconferred on, or invested in, a court by section 104includes jurisdiction in relation to any matter arisingunder the Child Support eill in relation to whichproceedings are transferred to that court under another lawof the Commonwealth (e.g. under section 45 of the FamilyLaw Act 1975 I.

Subclause 104(9) provides that the jurisdictionconferred on, or invested in, a court by clause 104 isadditional to any other jurisdiction conferred on, orinvested in that court.

Clause 105 : Application of Family Law Act

Subclause 105111 provides that the Family Law Act~ (other than Part X of that Act which deals withappeal. I and the Regulations and Rules made under that Actapply to proceedings under the Child Support Act as ifthose proceedings were proceedings under the Family LAwAct. The Family LAw Act and the Regulations and Rules madeunder it may be modified by those Rules in relation toproceedings under the Child Support Act.

Subclause 105(21 empowers a court to givedirections and make orders where any difficulties arise inproceedings under the Child Support Act because of theapplication to those proceedings of the Family Law Act,Rules and Regulations.

Clause 106 : Appellate jurisdiction of Family Court underA£!.

Subclause 106(1) provides that the Family Courthas jurisdiction with respect to matters arising undersubclauses 44(21 and 88(1) in relation to which appealsfrom the Family Law Court or from courts of summaryjurisdiction are instituted under clauses 107 and 110respectively. The Family Court will also have jurisdictionin relation to applications for leave to appeal from theFamily Court or from a court of summary jurisdiction.

83.

Subclause 106121 provides that in an appeal underclauses 107 and 110, the Family Court shall have regard tothe evidence given in the proceedings out of which theappeal arose. The Family Court also has power to drawinferences of fact, and a discretion to receive. furtherevidence on questions of fact. Such further eV1dence may,under subclause 106()J, be given by affidavit, by oralevidence or in such manner as the Family Court directs.

~lau5e 197 : Appeals to Family Court under Act

Subclause 107(1) provides that an appeal lies tothe Full Court of the Family Court but only with the leaveof the Full Court, from a decree of :

the Family Court {constituted other than as a FullCourt I;:

a Family Court of a State; or

the Supreme court of the Northern Territory,(constituted by a single judgeJ.

where those courts are exercill'ing original or appellatejurill'diction under the Bill.

Subclause 107(2) provides for an applicati~n forleave to appeal under subclause 107(1) to be made w~thinthe time prescribed, or the further time allowed, by theFamily Law Rules.

Subclause 107{)) sets out the powers of the Fullcourt of the Falllily court in an appeal to it under theBill. On such an appeal the Full court may affirm, reverseor vary the decree that is the subject of the appeal and itmay make such decree as it considers ought to have beenmade in the first instance or it can order a re-hearing ofthe matter.

Clause 108 : Cases stated

Subclause 108(l1 enables the Family Court (otherthan when constituted as the Full Court I , a State FamilyCourt or the Supreme Court of the Northern Territory {whenconstituted by a single judge I to state a case for thedetermination of the Full Court of the Family Court wherein proceedings under the Child Support Act a question oflaw arill'es that the Judge and at least one of the partieswish to have determined by the Full Court.

84.

Subclause 108(2) permLts the Full Court indetermining CAses stated to draw from the facts anddocuments in the proceedings, any influence whether of factor law, which could have been drawn from them by the judgeat first instance.

Clause 109 : Appeals to "lah Court

This clause provides that an appeal does not lieto the High Court from a court exercising original orappellate jurisdiction under the Bill except either byspecial leave of the High court or on a certificate of aFull Court of the Family Court that an important questionof law or of public interest is involved.

Clause 110 : Appeals from courts of Bummary 1urisdiction

This clause provides for appeals from courts ofsummary jurisdiction exercising jurisdiction under the aill.

Generally an appeal lies from a court of summaryjurisdiction of a State or Territory e~ercising

jurisdiction under the aill to the Family Court. Howeverin the case of a court of summary jurisdiction of a Statethat has a State Family Court (that is in WesternAustralia) the appeal will lie to the Family Court of thatState. In the case of a court of summary jurisdiction ofthe Norther Territory the appeal will lie to the SupremeCourt of the Northern Territory I subclause llQ(l).

All such appeals from courts of summaryjurisdiction can be brought only with the leave of theappellate court: subClause 110(21.

ay subclaus@ 110(3), an application for leave toappeal from a court of summary jurisdiction is to be madewithin the time prescribed, or the further time allowed bythe Family Law Rules.

Subclause 110(41 invests a Family Court of a Statewith jurisdiction with respect to appeals and applicationsfor leave to appeal under the Child Support Act. It alsoconfers this jurisdiction on the Supreme Court of theNorthern Territory.

Subclause 110<S) provides that theGovernor-General may, by proclamation fi~ a day on andafter which, application may not be made to a Family Courtof a State or the Supreme Court of the Northern Territoryfor leave to appeal from a court of summary jurisdictionexercising jurisdiction under the Child Support Act.

85.

Subclause 110(6) provides that a court hearing anpeal from a court of summary jurisdiction shall. proceed

~~ way of a de novo hearing although it may rece1ve aseViden~e any record of evidence given in the court ofs~ry jurisdiction. The appellate court is able to makesuch decrees as it considers appropriate.

When a court grants leave to appeal from a courtof s~ry jurisdiction, the court may refer the appeal tothe Full Court of the Family Court , $ubclause 110(1)

When an appeal is so referred to the Full court ofthe Family Court, the Full Court's powers are as follows.It may proceed by way of de nova hearing although it mayreceive as evidenc~ any record of evidence given in thecourt of summary jurisdiction. It may order that questionsof fact arising in the proceedings be tried by a judge. Itmay determine questions of law arising in the proceedingsand remit the appeal to a judge for a hearing. It may makesuch decrees as it considers appropriate.

PART IX - MISCELLANEOUS

Clause 111 : Duties of payers

This clause provides certain obligations on payersof an enforceable maintenance liability which are necessaryin order that the Registrar be able to effectivelya~nister the Child Support Scheme

ay subclause (1) of this clause, a payer whocommences work with an employer as an employee is requiredto notify the Registrar, in the form notified in theGa%ette for the purposes of this subclause, of thecommencement of his or her employment. This will all~w theRegistrar to apply the provisions of Part IV of the B111 ­COLLECTION BY DEDUCTIONS FROM SALARY OR WAGES - to beconsidered in relation to the particular payer. The payerhas 14 days after commencement of his or her employment tonotify the Registrar under this subclause.

All payers are, under subclause (2/, required tonotify the Registrar, in the approved form, of any changein the payer's name or address. Again, this requirement isto be complied with within 14 days of the change of thepayer's name or address.

B6.

Subclause <3! of the clause provides an offencefor any person who contravenes subclause (1) or (2). Aconviction under this subclause carries a fine notexceeding $1,000. However, it 15 a defence to aprosecution for an offence against that subclause, if thecharged person establishes that notification was made tothe Registrar as soon as was reasonably practicable in thecircUJllstances.

Clayse 112 : Copies of maintenance orders and agreements tobe forwarded to Registrar

This clause provides an important source ofinformation to the Registrar in relation to potentialregistrable maintenance liabilities.

Subclause 112<!1 requires the registrar or otherresponsible officer of a court that makes, registers orapproves certain orders or agreements (as the cas.requires) to send to the Registrar certified or sealedcopies of those orders or agreements. The orders oragreements covered by the subclause are -

an order made by, or registered in, a court underthe Family Law Act 1975 or a law of a TerritorylSubparagraph (a)(i»; or

a maintenance agreement registered in, or approvedby, a court under that Act or law (subparagraphtaHlip,

provided that in each case, the order or agreement makesprovision in relation to -

child _intenance (subparagraph Ib J (i I) i or

spousal.aintenance (subparagraph (bltii).

The registrar or other responsible officer isrequired to send the copies etc. to the Registrar within 28days after the event referred to in subparagraph (a)(il or(ii) i.e., the making, registering or approving of theorder or agreement, as the case requires.

Subclause 112(2) allows for some flexibility inrelation to satisfying the information requirements of thisclause. The Registrar ~y give notice in writing to theregistrar or other responsible officer of any court thatvaries the requirements of subclause <I) in such instancesand to the extent the Registrar thinks fit.

87.

~lause 113 : Recovery of debts

This clause will enable the recovery of ?ebts dueto the commonwealth as established by this Bill w1th theexception of overpayments made to payees <subclause 79(1)see notes on that subclausel.

Firstly, by paragraph 113(al payments of t~esedebts to the Registrar will be required to be.made 1n themanner and at the place prescribed by regulat10n.Secondly the authority to sue for the recovery of thesedebts in'a court of competent jurisdiction is acc~rded tothe Registrar or a Deputy Registrar by the operat10n ofparagraph 113<bl.

clause 114 : ~pplicatiQn of payments

This clause will provide for the making ofregulations which will enable the Registrar to determinethe application of payments, where such payments are notreadily applicable to a particular liability under thisBill. However, these regulations will not override or beinconsistent with clause 70 which deals with theapportionment of payment between payees.

Clause 115 : Substituted service

This clause will enable the Registrar, when takingrecovery action to serve a document in a case where theRegistrar is satisfied that a person is absent from .Australia or cannot be found. Service in such a case w1llbe effected by posting the document or a sealed copythereof to the person's last known private or businessaddress in Australia.

Clause 116 : Evidence

Subclause 116111 will establish the evidentiaryvalue to be given to a purported copy of an entry in theChild Support Register, being a document produced andsigned by the Registrar or a Deputy Registrar.

Such a document will be conclusive evidence of thefollowing :

the liability is a registrable maintenanceliability (paragraph 116(1) (4) 1;

the liability has been registered in the ChildSupport Register (paragraph 116{ 1) <bl);

88.

the p~rticular8 of the liability contained in thedocument reflect the entry in the Child SupportRegister (paragraph 116(1)(cll; and

by 8ubparo!lqrlloph 11611J(c!I, the ~rtic:ular8 arecorrect except in cases where the proceedingsrelate to the liability contained in the Registerunder Division 1 of Part VII of this Bill.

By ,ubclaus~ 11612! a produced certificate, signedand dated by the Reg1strar or a Deputy Registrar, for thepurposes of specifying an amount due and payable (on thedate of the certificate) being a liability under a specificprovision of Part IV of this Bill and the name of theliable person will be prima facie evidence of the mattersstated in that certificate.

Clause 117 ; Appearance by Registrar etc.

. This clause is concerned with appearances by theReg1strar or a Deputy Registrar in an action, prosecutionor other proceeding under, or arising out of, this Bill.By subclayse ll7fl), the Registrar or Deputy Registrar mayappear personally or be represented by an appropriatelyenrolled barrister or solicitor or by another person suchas a le~ally qualified officer, authorised in writin; bythe Reg1strar or Deputy Registrar, as the case may be toappear. '

By sybclause 117(21, the appearance of a personand that person's statement that he or she appears byauthority of the Registrar or a Deputy Registrar will be'prima facie' evidence of the right to appear.

Clause 118 I Judicial notice of signature

This clause requires judicial notice to be takenof the signature of a person who holds or has held theoffice of Registrar or Deputy Registrar. This provisionwill apply to official documents required for the purposesof this Bill.

Clause 119 : False or misleading statements

. This clause will make it an offence, punishable bya f1ne not exceeding 52,000 upon conviction, for a personto make a statement to an officer or another person for a~urpose in connection with the operation of this Bill that15 false or misleading in a material particular or which bythe omission of some matter, is rendered misleading _subclause 119(1).

89.

By subclause 119(21 it will be a defence if theperson proves on the balance of probabilities that he orshe did not know and could not reasonably be expected tohave known that the statement to which prosecution relateswas false or misleading.

Subclause lI9() gives meaning to the reference tothe expression "a statement made to an officer" Insubclause 119(1). An officer is a person who exercisespower for the purposes of this Bill. Generally, astate~nt, which is required by Or for the purposes of thisBill, can be oral, written, or in any other form.

Clause 120 : Obtaining of information and evidence

Subclause 120(1) will enable the Registrar torequire, by notice of writing, any person to furnishspecified information in a reasonable time and manner, toattend before the Registrar at a specified ti~e and placewhich is considered reasonable and answer questions or toproduce documents, that the person has the custody orcontrol of at a reasonable time and place as specified bythe Registrar.

Those persons who are required to attend beforethe Reqistrar may receive reimburse~nt of expensesincurred in accordance with the levels prescribed in therequlations : subclause 120(2).

Where a person is capable of complying with therequirements of subclause 120(11 and refuses or fails to do50, subclause 120()) makes that act an offence and if foundguilty, the person is punishable by a fine not exceeding52,000.

Clause 121 I Order to comPly with requirement

Clause 121 will authorise a court, in respect of aperson convicted of an offence against paragraph 47(1)(b1or subclause 47f)) or 120(1), including a case when anorder under section 19B of the Crimes Act 1914 is made inrelation to such person, to order the person, in additionto i~posing a penalty or making the order under section 19Bof the Crimes Act 1914 on the person, to comply with therequirement that has not been complied with and to do sowithin a specified time or at a specified place and timeSubclause 121(11.

Subclause 121(2) will require an officer to serveon the person, a copy of the order made undersubclause 121(1) where the person fails to attend court andthe order is not given orally by the court to the person towhom it is addressed.

".By subcl~uge 121(3), an order under subclause

121(1) which is contravened, constitutes a offence, whichupon conviction, is punishable by a fine not exceeding55,000 or imprisonment for a period not exceeding 12months, or possibly both.

Clause 122 : Right of contribution

Clause 122 will apply in cases where 2 or morepersons are liable to pay a debt due to the Co~nwealth

under this Bill, either jointly or jointly and severally,and only one of these persons has either fully or partiallypaid the liability.

Under this clause the person who contributed towards thedebt will be able to recover from the other liable personor persons an amount considered just and equitable by acou.rt of competent jurisdiction.

Clause 123 : Act not taxation law

Under the definition of "taxation law" insection 2 of the Taxation Administration Act 1953, that Actand any other Act of which the Commissioner has the generaladministration is taken to be a taxation law. One effectof that is the application of various offences andpenalties applicable to individuals with obligations andduties under those Acts.

While the Commissioner, as Registrar, has theresponsibility for the general administration of the Bill,it is not intended to apply the same level of penalties andoffences to individuals under this Bill as apply generallyunder taxation laws. This clause makes it clear that thisB1ll 1s not a "taxation law" (even if it could be soconstrued) for the purposes of the Taxation AdministrationAct.

Clause 124 : Application of Act to overseas orders andagreements

This clause is a technical provision which willensure that the Bill may be applied (subject to suchmodifications as are prescribed by regulation 1 in relationto -

orders <including interim orders 1 ­subclause 124(11; and

maintenance agreements - subclause 124(2)

,..i t that are registeredde under a law of a fore gn coun ry 1975

~, or approved by, a court under the Family Law Actor a law of a Territory.

~lause 125 : Regulations

This clause will authorise the Governor-General toke regulations prescribing matters required o~permitted

rna be rescribed or necessary or convenient toto Pbed for administering the Bill. The clause alsopres~~~s for the prescription by regulatiOn of penalties~~~vexceeding 5500 for offences against the regulations.