Family Assistance and Child Support Legislation Amendment (Protecting Children) Bill 2017 [2017] AUSStaCSBSD 336 (18 October 2017)

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Purpose	This bill seeks to amend various Acts relating to family assistance and child support Schedule 1 amends the child support scheme to: • extend the interim period that applies for recently-established court-ordered care arrangements and provide incentives for the person with increased care to take reasonable action to participate in family dispute resolution; • allow tax assessment to be taken into account for child support purposes in a broader range of circumstances; • allow for courts to set aside child support agreements made before 1 July 2008, as well as allowing all child support agreements to be set aside without having to go to court if certain circumstances change; and • amend methods in relation to recovering child support debts and make consequential amendments Schedule 2 replaces the current FTB Part A immunisation requirement arrangements with new compliance arrangements
Portfolio	Social Services
Introduced	House of Representatives on 14 September 2017
Scrutiny principles	Standing Order 24(1)(a)(i) and (iii)

Retrospective effect^[46]

1.61 A number of provisions^[47] in the bill appear to operate on past events, for example, agreements which exist, or assessments which were made, prior to commencement. In addition, item 174 refers to matters for ascertaining or determining components of certain income for periods before 1 July 2008. The explanatory memorandum provides no explanation as to whether any of these provisions, which operate on past events, would have a retrospective effect on any individual. The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.62 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.63 It is unclear from the bill or the explanatory materials as to whether these provisions would have a retrospective effect, and if so, if any individual would suffer any detriment as a result.

1.64 The committee therefore requests the Minister's advice as to whether any of the provisions listed above would have a retrospective effect, and if so, whether any person would suffer any detriment as a result.

Freedom of movement and access to merits review—Departure Prohibition Orders^[48]

1.65 Currently section 72D of the Child Support (Registration and Collection) Act 1988 (the Child Support Act) provides that the Registrar may make a departure prohibition order (DPO) prohibiting a person from departing from Australia for a foreign country if a person has child support debts. Section 72F makes it an offence for a person to depart Australia for a foreign country if a DPO is in force.

1.66 Items 146 to 155 seek to amend the DPO provisions in the Child Support Act to provide for an additional ground on which the Registrar can make a departure prohibition order, namely if the person has 'carer liability' (a new type of debt owed to the Commonwealth as introduced by this bill)^[49].

1.67 The committee has previously noted that DPOs in the context of social security legislation raise concerns regarding freedom of movement and a lack of merits review.^[50] In particular, the committee is concerned that the question of whether it is appropriate to impose a DPO in individual circumstances depends on whether the Registrar is 'satisfied' of certain matters, leaving a broad discretion to the Registrar to determine if a DPO should be made.

1.68 In addition, the DPO scheme does not provide for merits review of the Registrar's decision. Although section 72Q of the Child Support Act provides that an appeal from a decision to make a departure prohibition order may be made to the Federal Court of Australia or Federal Circuit Court of Australia, this is expressly made subject to Chapter III of the Constitution (and would, in any event, necessarily be read as subject to the Constitution). The result is that the appeal would be limited to questions about the legality of the decision rather than enabling the court to review the merits of the original decision. This means that the court would not be in a position to substitute its judgment for the Registrar's even if it thought the decision was not the correct or preferable decision on the established facts.

1.69 From a scrutiny perspective, the committee considers that any extension of the DPO scheme to encompass additional debts to the Commonwealth (as provided for by items 146 to 155 of Schedule 1), raises concerns about the effect of DPOs on a person's freedom of movement and the absence of merits review of the decision to make a DPO.

1.70 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of extending the Departure Prohibition Order scheme to encompass new debts to the Commonwealth.

[46] Schedule 1, item 43, new paragraph 58A(3B)(b)(iv) and 58A(3d)(c)(iii); and items 51; 74(3) and (6); 172(2) and (4); 174; 176; and 183. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[47] See Schedule 1, item 43, new paragraph 58A(3B)(b)(iv) and 58A(3d)(c)(iii); and items 51; 74(3) and (6); 172(2) and (4); 174; 176; and 183.

[48] Schedule 1, items 152–155. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.

[50] Senate Scrutiny of Bills Committee, Fifth Report of 2016, 3 May 2016, p. 386.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests