Social Services Legislation Amendment (Child Support Measures) Bill 2023 [2023] AUSStaCSBSD 79 (10 May 2023)

• Social Services Legislation Amendment (Child Support Measures) Bill 202399
• Coercive powers Conferral of broad discretionary powers100

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Social Services Legislation Amendment (Child Support Measures) Bill 2023^[99]

Purpose	This bill seeks to amend the Child Support (Assessment) Act 1989, and the Child Support (Registration and Collection) Act 1988, to: • extend the application of the Child Support Registrar’s employer withholding collection powers; • allow the Registrar to refuse to issue a departure authorisation certificate where a security is offered unless satisfied it is likely that the parent will make suitable arrangements to pay their outstanding liabilities; and • introduce a new default income for parents not required to lodge a tax return, to simplify the income reporting requirements for payers and payees.
Portfolio	Social Services
Introduced	House of Representatives on 29 March 2023

Coercive powers
Conferral of broad discretionary powers^[100]

1.163 Item 8 of Schedule 1 to the bill seeks to insert an amended form of paragraph 72L(3)(a) into the Child Support (Registration and Collection) Act 1988 (the Act). Currently, section 72L of the Act provides for when the Child Support Registrar (the Registrar) must issue departure authorisation certificates.

1.164 The Registrar may make a departure prohibition order which prohibits a person from departing from Australia under subsection 72D(1) of the Act. A person subject to this order can apply for a departure authorisation certificate under section 72K of the Act. A departure authorisation certificate is a certificate authorising a person subject to a departure prohibition order to depart from Australia for a foreign country.^[101] Currently, the Registrar must issue a departure authorisation certificate if either satisfied that the person will depart from and return to Australia in a period the Registrar considers appropriate,^[102] or the person provides security for their return to Australia.^[103]

1.165 Proposed paragraph 72L(3)(a) would require the Registrar to issue a departure authorisation certificate if satisfied that:

• if the certificate is issued, it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order,^[104] and

• the person has provided a security for their return to Australia.

1.166 The effect of this provision is that even if a person has provided a security for their return to Australia, the Registrar must also be satisfied of this additional criterion before issuing a certificate. Proposed paragraph 72L(3)(a) therefore introduces a discretionary element to the Registrar's issuing of a departure authorisation certificate, specifically that they must be satisfied that it is likely that any of the matters under subsection 72I(1) will occur within a period that the Registrar considers appropriate.

1.167 Where a bill contains a discretionary power, such as this, the committee expects the explanatory memorandum for the bill to address whether there are appropriate criteria or considerations that limit or constrain the exercise of any power, including whether they are contained in law or policy.

1.168 In relation to proposed paragraph 72L(3)(a), the explanatory memorandum merely restates the operation of the provision, noting that:

Substituted subparagraph 72L(3)(a)(i) provides that a certificate must be issued if the Registrar is satisfied that if the departure authorisation certificate is issued it is likely, within a period that the Registrar considers appropriate, that subsection 72I(1) will be satisfied, and the Registrar will be required to revoke the departure prohibition order. This is similar to considerations already before the Registrar under subparagraph 72L(2)(a)(ii). In contrast, substituted subparagraph 72L(3)(a)(i) does not require that arrangements satisfactory to the Registrar to revoke the departure prohibition order are in place, but instead that it is likely that they will be in place within a period that the Registrar considers appropriate.
This is in addition to the requirement, replicated in new subparagraph 72L(3)(a)(ii), that the person has given security under section 72M for the person’s return to Australia.^[105]

1.169 The committee notes that neither the bill nor the explanatory memorandum provides any guidance on what the Registrar may consider is an appropriate period in which they will likely be required under subsection 72I(1) to revoke a departure prohibition order. The committee is therefore concerned about the breadth of the discretion afforded to the Registrar under this provision. From the limited explanation provided, it appears that it would be more appropriate if the bill limited this discretion. For example, by including guidance as to how the Registrar's discretion should be exercised, such as a list of factors that the Registrar must consider in determining what an appropriate period is, or by providing a definition of 'appropriate period'. The committee's concerns are heightened in this instance given the effect of this provision is to prevent a person from leaving Australia and therefore impacts their right to freedom of movement.

1.170 In light of the above, the committee requests the minister's advice as to whether the bill could be amended to provide guidance in relation to the Registrar's power to issue a departure authorisation certificate. For example, by providing a list of matters the Registrar must consider in determining what an appropriate period is for the purpose of issuing a departure authorisation certificate under proposed paragraph 72L(3)(a), or by defining the term 'appropriate period'.

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[99] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Social Services Legislation Amendment (Child Support Measures) Bill 2023, Scrutiny Digest 5 of 2023; [2023] AUSStaCSBSD 79.

[100] Schedule 1, item 8, proposed paragraph 72L(3)(a). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (ii).

[101] Child Support (Registration and Collection) Act 1988, subsection 72K(1).

[102] Child Support (Registration and Collection) Act 1988, subsection 72L(2).

[103] Child Support (Registration and Collection) Act 1988, paragraph 72L(3)(a).

[104] Under subsection 72I(1), the Registrar must revoke a departure prohibition order if the person will no longer have a child support or carer liability, satisfactory arrangements have been made for the liability to be discharged, or the liability is irrecoverable.

[105] Explanatory memorandum, p. 4.