House of Representatives

Tribunals Amalgamation Bill 2014

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
This memorandum takes account of amendments made by the Senate to the bill as introduced and supersedes the explanatory memorandum tabled in the Senate

Schedule 4 - child support amendments

Overview

1276. Schedule 4 to the Bill would amend the CSA Act and the CSRC Act to support the amalgamation.

1277. Key features of Schedule 4 to the Bill include:

·
amendments to transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to merits review being preserved (including second review by the AAT of SSAT decisions, for those limited matters where it is currently available)
·
new defined terms of 'AAT first review' and 'AAT second review' corresponding to existing SSAT and AAT reviews of child support matters respectively
·
amendments to preserve existing procedures for merits review of child support matters, including amendments to modify the procedures generally applicable under the AAT Act
·
amendments to enable persons to seek merits review where the Child Support Registrar has refused to make a departure determination under sections 98E or 98R of the CSA Act because the issues are too complex. This would make the expertise of the amalgamated Tribunal, and its economical and accessible review function, available to parties in complex child support disputes, whereas under existing policy they are required to seek an outcome in the courts.
·
amendments to streamline pathways for judicial review, so that judicial review of AAT decisions in relation to child support would be conducted by the Federal Circuit Court and Federal Court under the AAT Act. This would be a departure from existing policy whereby various courts have jurisdiction to hear appeals from SSAT decisions under Division 3 of Part VIII of the CSRC Act, and
·
consequential amendments, including to replace references to the SSAT with references to the AAT.

1278. References to the 'Registrar' in relation to Schedule 4 are to the Child Support Registrar, unless otherwise stated.

Amendments to the Child Support Assessment Act 1989

Item 1 - Subsection 5(1)

1279. Item 1 would insert a definition of the 'AAT Act' into section 5.

Item 2 - Paragraph 33(4)(b), Item 3 - Subparagraph 34(2)(b)(ii), Item 4-Paragraph 44(6)(b) and equivalents (Items 7, 14, 23 and 25)

1280. Item 2 would amend paragraph 33(4)(b) by omitting reference to the SSAT and substituting references to the AAT and the AAT Act.

1281. Existing paragraph 33(4)(b) requires that when the Registrar notifies an applicant of a decision to which an objection may be made, the notice must state that if the applicant is aggrieved by the later decision on objection, the applicant may apply to the SSAT. The amendment would provide for a person to be notified of their right to apply to the AAT, subject to the CSRC Act and the AAT Act, for review of the Registrar's decision.

1282. The following Items would make the same amendment to other provisions in the Act that currently require notification of a right of review to the SSAT:

·
Item 3 - Subparagraph 34(2)(b)(ii)
·
Item 4 - Paragraph 44(6)(b)
·
Item 7 - Paragraphs 63AB(2)(b), 63AD(5)(b), 63AE(3)(b), 64AB(3)(b), 64AH(3)(b) and 66C(2)(b)
·
Item 14 - Paragraphs 80G(4)(b) and 96(2)(b)
·
Item 23 - Paragraph 146B(5)(c), and
·
Item 25 - Paragraphs 146E(6)(b) and 151C(5)(b).

1283. These amendments would preserve existing policy that a person must be notified of their right to external merits review when notified of a decision on internal review.

Item 5 - Subsection 54L(1) and Item 6-Subsections 54L(2) and (3)

1284. Items 5 and 6 would amend section 54L to replace references to the SSAT with the AAT.

1285. Existing section 54L ensures that reviews of care percentage decisions under family assistance law will apply for child support purposes. Subsection 54L(2) deals with when the SSAT reviews a decision under section 113 of the FAA Act. Subsection 54L(3) deals with when the AAT reviews a decision under the AAT Act. The provisions are otherwise identical. Following amalgamation only one subsection would be needed.

1286. Item 6 would insert new subsection 54L(2) as a single provision to ensure that an AAT review of a care percentage decision under the family assistance law would apply for child support purposes. Item 5 would renumber the subsections in section 54L. No policy change is intended.

Item 7 - Paragraphs 63AB(2)(b), 63AD(5)(b), 63AE(3)(b), 64AB(3)(b), 64AH(3)(b) and 66C(2)(b)

1287. See Item 2 in relation to Item 7.

Item 8 - Subsection 70(1) and Item 9-Section 72

1288. Item 8 would repeal subsection 70(1) and substitute new subsections 70(1) and (1A). Item 9 would repeal section 72 and substitute new section 72.

1289. Existing section 70 ensures that notices of administrative assessment from the Registrar are evidence of the proper making of the assessment, including that it is correct, except in proceedings under Part VIIA or Subdivision B of Division 3 of Part VIII of the CSRC Act. Proceedings under Part VIIA of the CSRC Act are SSAT proceedings. Proceedings under Subdivision B of Division 3 of Part VIII of the CSRC Act are court appeals from SSAT proceedings.

1290. Existing section 72 provides that, except in an appeal under Part VIIA or Subdivision B of Division 3 of Part VIII of the CSRC Act, the validity of an assessment is not affected because any provisions of the Act have not been complied with.

1291. Items 8 and 9 would update references in sections 70 and 72 in light of the transfer of merits review jurisdiction in child support matters from the SSAT to the AAT:

·
the reference to proceedings under Part VIIA would become a reference to AAT first review or AAT second review (these definitions are inserted at Item 26 of Schedule 4 to the Bill), and
·
the reference to Subdivision B of Division 3 of Part VIII would become a reference to a court appeal under Part IVA of the AAT Act (consequential to the changes to judicial review pathways at Item 66 of Schedule 4 to the Bill).

1292. No policy change is intended as a result of the proposed amendments to sections 70 and 72.

Item 10 - Paragraph 75(3)(c) and Item 11-Paragraph 75(4)(f)

1293. Item 10 would repeal paragraph 75(3)(c) and substitute new paragraph 75(3)(c). Item 11 would repeal paragraph 75(4(f) and substitute new paragraph 75(4)(f).

1294. Existing section 75 has the effect that the Registrar may, at any time, amend any administrative assessment of child support. Paragraph 75(3)(c) permits amendment despite the fact that related proceedings are pending in a court or in the SSAT. Paragraph 75(4)(f) clarifies that the Registrar may amend any administrative assessment for the purpose of giving effect to a decision of a court having jurisdiction under the CSRC Act, or to a decision of the SSAT.

1295. Items 10 and 11 would update paragraph 75(3)(c) and paragraph 75(4)(f) to refer to:

·
the AAT instead of the SSAT, and
·
court appeals under the AAT Act instead of under the CSRC Act (consequential to the changes to judicial review pathways at Item 66 of Schedule 4 to the Bill).

1296. No policy change is intended as a result of the proposed amendments to section 75.

Item 12 - Subparagraph 76(3)(a)(ii) and Item 13-Paragraph 76(3)(b)

1297. Item 12 would amend subparagraph 76(3)(a)(ii) and Item 13 would repeal paragraph 76(3)(b).

1298. Existing section 76 deals with the obligation on the Registrar to give notice of an administrative assessment to persons whose interests are affected by the assessment.

1299. Existing paragraph 76(3)(a) requires the Registrar to notify the person of the right to object to the administrative assessment and the right, if aggrieved by the decision on objection, to apply to the SSAT for review. Item 12 would amend subparagraph 76(3)(a)(ii) to refer to the AAT instead of the SSAT.

1300. Existing paragraph 76(3)(b) requires that when the Registrar gives notice to persons of an administrative assessment, the notice must include a statement to the effect that if the person is aggrieved by a decision of the SSAT on review of a care percentage decision, the person may apply to the AAT for review of the SSAT decision.

1301. The repeal of paragraph 76(3)(b) is appropriate in light of the amalgamation. It is not necessary to give notice of rights to AAT second review prior to a person making an application to the Tribunal for AAT first review. New subsections 43(5AA)-(5AC) of the AAT Act (Item 119 of Schedule 1 to the Bill) would require the amalgamated Tribunal, upon completion of first review of a care percentage decision, to notify persons of their right to second review by the AAT. This would ensure parties are aware of their further review rights in all cases.

Item 14 - Paragraphs 80G(4)(b) and 96(2)(b)

1302. See Item 2 in relation to Item 14.

Items 15 to 19

1303. Items 15 to 19 would amend the CSA Act to enable merits review where the Registrar refuses to make a departure determination under Part 6A of the Act because the issues are too complex.

1304. Sections 98E and 98R of the CSA Act currently permit the Registrar to refuse to make a departure determination because the issues are too complex. The complexity typically arises as a result of evidentiary issues as well as the financial structures used by some persons. The Registrar's refusal may be either the original decision to which an objection is disallowed, or the decision on an objection to an original decision. At present, in such circumstances persons whose interests are affected by the refusal are required to apply to a court for a determination.

1305. It is no longer appropriate that this category of complex matters is precluded from external merits review by the Tribunal. The existing system reflects the evolution of the child support regime from its inception when matters were dealt with in the courts. The SSAT has developed considerable expertise in respect of child support matters since this jurisdiction was conferred on it with effect from 1 January 2007. Allowing persons to seek merits review in the amalgamated AAT, instead of seeking recourse in a court, would be advantageous:

·
Tribunal proceedings are more accessible, informal and cheaper than court proceedings
·
the inquisitorial nature of Tribunal proceedings is better suited to parties who do not have legal representation, which is the case for most parties in child support matters
·
the application would likely be resolved more quickly by the Tribunal than a court
·
the significant information-gathering powers of the Tribunal would be available to enable the member hearing the review to obtain the evidence to determine the complex issues at stake, and
·
Tribunal members include qualified accountants with the skills to analyse complex financial evidence.

1306. The proposed repeal of subsection 89(2) of the CSRC Act (Item 52 of Schedule 4 to the Bill) would enable persons to seek merits review by the AAT. Items 15 to 19 would make related amendments to the CSA Act to give effect to the new merits review pathway for parties where the Registrar has refused to make a departure determination because the issues are too complex.

Item 15 - Section 98E and Item 17 - Section 98R

1307. Item 26 would repeal section 98E and substitute new section 98E. Item 31 would repeal section 98R and substitute new section 98R.

1308. Existing section 98E concerns departure determination proceedings initiated by a liable parent or carer entitled to child support. It permits the Registrar to refuse to make a departure determination under Part 6A of the Act if the Registrar is satisfied that the issues raised by the application are too complex. In such circumstances, the Registrar may recommend that a person apply to a court for a determination. Existing section 98R has the same effect as section 98E, but concerns a departure determination process initiated by the Registrar.

1309. New subsections 98E and 98R would continue to permit the Registrar to refuse to make a departure determination if the issues were too complex, however, the Registrar would no longer recommend that persons apply to a court for a determination in such circumstances. Instead, persons would be notified of their right to merits review by the amalgamated Tribunal under amended paragraph 98JA(2)(b) and amended paragraph 98RA(2)(b) (Items 16 and 18).

Item 16 - Paragraph 98JA(2)(b) and Item 18-Paragraph 98RA(2)(b)

1310. Item 30 would repeal paragraph 98JA(2)(b) and substitute new paragraph 98JA(2)(b). Item 32 would repeal paragraph 98RA(2)(b) and substitute new paragraph 98RA(2)(b).

1311. Existing paragraphs 98JA(2)(b) and 98RA(2)(b) require that where the Registrar has refused to make a departure determination under Part 6A-either on the initiative of a liable parent or carer, or on the Registrar's own initiative-the Registrar must notify parties of their rights to object to the refusal. The notification must include a statement that if the party is aggrieved by the later decision on the objection, they may apply to the SSAT for review, except if the Registrar's original decision was to refuse to make a determination because the issues are too complex. In the event of a refusal because of complex issues, existing paragraphs 98JA(2)(b) and 98RA(2)(b) provide for notification of a person's right to apply to a court.

1312. New paragraphs 98JA(2)(b) and 98RA(2)(b) would ensure that persons are notified of their right to review by the AAT in respect of all refusals by the Registrar to make a departure determination under Division 2 and Division 3 of Part 6A. It would no longer be necessary for the provisions to single out matters involving complex issues, as the merits review pathway would be the same for all decisions to make or refuse to make a departure determination.

Item 19 - Paragraphs 116(1)(a), (aa) and (ab)

1313. Item 19 would repeal paragraphs 116(1)(a), (aa) and (ab).

1314. Existing paragraphs 116(1)(a), (aa) and (ab) enable a liable parent or a carer entitled to child support to apply to a court having jurisdiction under the CSRC Act for an order if the Registrar has refused to make a departure determination under sections 98E or 98R because the issues are too complex. Specifically:

·
paragraph 116(1)(a) applies where the Registrar has decided that the issues are too complex, and the objection to this decision is disallowed (even if the Registrar has taken all action required by Part 6A and disallowed the objection because the Registrar was not satisfied of the matters in section 98C or section 98L)
·
paragraph 116(1)(aa) applies where the Registrar has made a decision after considering the matters in section 98C or 98L, but on objection the Registrar decides that the issues are too complex to consider those matters, and
·
paragraph 116(1)(ab) applies where the SSAT sets aside a decision of the Registrar on the merits and substitutes it with a decision that the issues are too complex. In practice, this does not occur.

1315. The repeal of paragraphs 116(1)(a), (aa) and (ab) would follow from the proposed repeal of subsection 89(2) of the CSRC Act (Item 52 of Schedule 4 to the Bill). The repeal of subsection 89(2) would ensure that a person would be entitled to merits review by the AAT in the circumstances envisaged in paragraphs 116(1)(a), (aa) and (ab). As a result, persons would not be entitled to apply for court orders. Instead, judicial review on questions of law would be available following the decision of the AAT, under amended section 44 and new section 44AAA of the AAT Act (Items 125 to 129 of Schedule 1 to the Bill).

Item 20 - Paragraph 139(2A)(e), Item 21-Paragraph 139(2B)(b) and Item 22-Subsection 139(2B) (note)

1316. Item 20 would repeal paragraph 139(2A)(e) and substitute new paragraph 139(2A)(e). Item 21 would repeal paragraph 139(2B)(b) and substitute new paragraph 139(2B)(b). Item 22 would amend the note after subsection 139(2B).

1317. Existing subsections 139(2A) and 139(2B) provide that where a court makes an urgent maintenance order while an application for administrative assessment of child support is pending, the court order ceases to have effect when a decision that the applicant is not entitled to assessment becomes final. Section 110W of the CSRC Act defines when decisions become final.

1318. Existing paragraph 139(2A)(e) provides that an urgent maintenance order ceases to have effect when the SSAT makes a decision under Part VIIA of the CSRC Act, or when a court makes a decision under Subdivision B of Division 3 of Part VIII of that Act. New paragraph 139(2A)(e) would replace the reference to the SSAT with the AAT, and the reference to a court under Subdivision B of Division 3 of Part VIII of the CSRC Act with a reference to a court under the AAT Act.

1319. Existing paragraph 139(2B)(b) relevantly provides that for the purpose of subsection 139(2A), a decision of the Registrar refusing to accept an application for administrative assessment of child support becomes final if an application to the SSAT under Part VIIA of the CSRC Act is not made within the period for doing so. New paragraph 139(2B)(b) would replace the reference to the SSAT under Part VIIA with a reference to the AAT on first review.

1320. The new note after subsection 139(2B) would refer to the definition of when AAT decisions become final in section 110W of the CSRC Act (replacing the existing reference to the SSAT).

1321. No policy change is intended as a result of the proposed amendments to section 139.

Item 23 - Paragraph 146B(5)(c)

1322. See Item 2 in relation to Item 23.

Item 24 - Subsection 146C(4)

1323. Item 24 would repeal subsection 146C(4) and substitute new subsection 146C(4).

1324. Existing section 146C deals with the power of the Registrar to vary, or refuse to vary, provisional notional assessments upon application from a liable parent or carer entitled to child support. Subsection 146C(4) provides that the liable parent and the carer may not apply to the SSAT in respect of a departure determination under Part 6A of the CSA Act. This provision on its face has the effect that the SSAT can never review a determination by the Registrar under Part 6A of the Act (a result which is contrary to section 89 of the CSRC Act).

1325. New subsection 146C(4) would prevent applications being made to the AAT (or to a court under section 116) in relation to the Registrar's making, or refusal to make, a departure determination under Part 6A, pursuant to subsections 146C(2) and 146C(3). By limiting the scope of subsection 146C(4) to subsections 146(2) and (3), the new provision would preclude the Tribunal's jurisdiction in respect of provisional notional assessments, until such time as the notional assessment is no longer provisional and a person has completed internal review processes (by objecting to the notional assessment) and remains dissatisfied with the outcome. In such circumstances the person should be entitled to apply for external merits review. This would reflect the original policy intent of section 146C.

Item 25 - Paragraphs 146E(6)(b) and 151C(5)(b)

1326. See Item 2 in relation to Item 25.

Amendments to the Child Support (Registration and Collection) Act 1988

Items 26, 27 and 28 - Subsection 4(1)

1327. Item 26 would insert new definitions into section 4 of the CSRC Act:

·
'AAT Act'
·
'AAT first review', and
·
'AAT second review'.

1328. 'AAT first review' would refer to review of decisions in respect of which applications may be made under new section 89 (Item 51 of Schedule 4 to the Bill). This would comprise those applications which may currently be made to the SSAT. It would additionally include applications in matters where the Registrar has refused to make a departure determination because the issues are too complex (see Items 15-19 and 52 of Schedule 4 to the Bill).

1329. 'AAT second review' would refer to review of decisions in respect of which applications may be made under new section 96A (Item 64 of this Schedule). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1330. The new definitions of 'AAT first review' and 'AAT second review' would facilitate the maintenance of the existing two-tiered review process in respect of child support decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the CSRC Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the SSAT in reviewing child support matters differ, based on the particular characteristics of the SSAT's caseload. These definitions would also be relied on in the AAT Act (see definitions of 'child support first review' and 'second review' inserted into section 3 of the AAT Act by Items 3 and 12 of Schedule 1 to the Bill).

1331. The categories of 'AAT first review' and 'AAT second review' would represent the continuation of existing policy in terms of the types of decisions that may be reviewed.

1332. Item 27 would repeal paragraph (a) of the definition of 'final' and substitute new paragraph (a). This change would be consequential to the amended definition of 'final' in section 110W (Item 71 of Schedule 4 to the Bill).

1333. Item 28 would repeal the definitions of 'SSAT', 'SSAT member' and 'SSAT Principal Member', in light of the abolition of the SSAT.

Item 29 - Subsection 7(3)

1334. Item 529 would amend subsection 7(3) to omit the references to the SSAT. Section 7 deals with State laws that relate to the collection of periodic amounts payable for the maintenance of children. Subsection 7(3) has the effect that where the Minister declares such a law to be a corresponding State law, it would apply to the SSAT and the AAT. No policy change to section 7 is intended. Section 7 would continue to apply to the amalgamated Tribunal.

Item 30 - Paragraph 16(2AAA)(a), Item 31-Paragraph 16(2AAA)(b), Item 32-Subsection 16(2AB), Item 33-Subsection 16(2AC), and Item 34-Subsection 16(3A)

1335. Items 30 to 34 would make amendments to section 16. Section 16 is a secrecy provision which restricts the manner and extent to which information obtained under the Act may be disclosed.

1336. Item 30 would omit the reference to the SSAT communicating the reasons for its decisions under Part VIIA in paragraph 16(2AA)(a), and substitute it with reference to the AAT communicating its reasons for a decision.

1337. Item 31 would repeal paragraph 16(2AA)(b), which deals with communications concerning the reasons for SSAT decisions, and substitute new paragraphs 16(2AA)(b) and (c), which would deal with communications concerning the reasons for AAT decisions.

1338. Item 32 would amend subsection 16(2AB) to omit reference to the publication of SSAT decisions under Part VIIA, and substitute reference to the publication of AAT decisions on AAT first review or AAT second review. The amalgamated Tribunal would determine which of its decisions may appropriately be published under new section 66B of the AAT Act (Item 147 of Schedule 1 to the Bill).

1339. Item 33 would omit reference to the SSAT under Part VIIA in subsection 16(2AC), and substitute a reference to the AAT.

1340. Item 34 would omit reference to an SSAT member in subsection 16(3A) and substitute a reference to an AAT member.

1341. These amendments would ensure that the prohibitions on disclosure of information in section 16, and the existing exceptions concerning the SSAT, continue to apply to the amalgamated Tribunal.

Item 35 - Paragraphs 42C(4)(b), 54(4)(b), 68(3)(b) and 71E(3)(b)

1342. Item 35 would amend paragraphs 42C(4)(b), 54(4)(b), 68(3)(b) and 71E(3)(b) to update the references to the SSAT and its merits review function in light of the amalgamation.

1343. Existing sections 42C, 54, 68 and 71E require that when notifying a person of a decision, the Registrar must also notify the person of the right to object to the decision and, if aggrieved by the later decision on objection, to apply to the SSAT for review. Amended paragraphs 42C(4)(b), 54(4)(b), 68(3)(b) and 71E(3)(b) would ensure that persons are notified of their rights to apply to the amalgamated Tribunal for external merits review (following a decision on objection), rather than the SSAT.

Item 36 - Section 79B (heading), Item 37-Paragraph 79B(1)(a), Item 38-Paragraph 79B(1)(b), and Item 39-Subparagraph 79B(3)(b)(i)

1344. Items 36 to 39 would make amendments to section 79B to update references to the SSAT and appeals from the SSAT in light of the amalgamation. Section 79B empowers the Registrar to make suspension determinations, such that a payee of a registered maintenance liability in relation to a child is not entitled under subsection 76(1) to be paid while certain court or Tribunal proceedings are pending.

1345. Item 36 would repeal the heading to section 79B and substitute a new heading that would refer to pending AAT and court reviews (rather than pending SSAT and court reviews).

1346. Item 37 would omit the reference to proceedings 'whether under Part VII, VIIA, or VIII' and substitute with reference to 'whether under this Act or the AAT Act'. This would reflect that the proceedings in the amalgamated Tribunal, and court appeals from such proceedings, would be brought under the AAT Act.

1347. Item 38 would repeal paragraph 79B(1)(b) and substitute a new paragraph 79B(1)(b). The new provision would refer to proceedings brought under Part IVA of the AAT Act (appeals to a court on a question of law), rather than proceedings brought under Subdivision B of Division 3 of Part VIII, which is the present mechanism for court appeals from SSAT decisions (see Item 66 of Schedule 4 to the Bill on changes to judicial review pathways).

1348. Item 39 would substitute a reference to the SSAT with a reference to the AAT in subparagraph 79B(3)(b)(i).

1349. These amendments would ensure that section 79B would apply where review proceedings are pending in the amalgamated Tribunal, as well as where review proceedings are pending in courts, in the same way as section 79B currently applies to the SSAT. No other policy change is intended.

Item 40 - Section 79D

1350. Item 40 would repeal section 79D and insert new section 79D. Existing section 79D is the simplified outline to Part VII of the Act, which deals with internal objection procedures for certain decisions. New section 79D would explain that if a person is dissatisfied with the Registrar's reconsideration of an objection, the person may apply to the AAT for review of the decision, which would be an "AAT first review". The reference in existing section 79D to court appeals from SSAT proceedings would be omitted, as such appeals would be made under the AAT Act.

Item 41 - Section 79E

1351. Item 41 would amend section 79E, which is the object clause of Part VII, to substitute references to the SSAT and its review function under Part VIIA with a reference to the AAT.

Item 42 - Paragraph 83(4)(b)

1352. Item 42 would amend paragraph 83(4)(b) to omit references to the SSAT and substitute references to the AAT. Existing paragraph 83(4)(b) requires that when notifying persons of a decision on an objection under subsection 83(1), the Registrar must also notify them of the right to merits review by the SSAT. The amendments would ensure that persons are notified of their right to external merits review by the amalgamated Tribunal. No other change to existing policy is intended.

Item 43 - Paragraph 87(3)(b)

1353. Item 43 would repeal paragraph 87(3)(b) and substitute a new paragraph 87(3)(b).

1354. Existing paragraph 87(3)(b) requires that when notifying persons of a decision on an objection under subsection 87(1), the Registrar must also notify them of the right to further review:

·
subparagraph 87(3)(b)(i) provides that if the decision to which the objection was made was a decision by the Registrar under sections 98E or 98R of the CSA Act (refusal to make a departure determination because the issues too complex), the Registrar must notify the person that they may apply to a court, and
·
subparagraph 87(3)(b)(ii) provides that otherwise (that is, if the decision to which the objection was made did not concern complex issues), the Registrar must inform the person of their right to apply to the SSAT for review.

1355. Subparagraph 87(3)(b)(i) would be unnecessary in light of the proposed changes to enable persons to seek external merits review where the Registrar has refused to make a determination because the issues were too complex (Item 52 of Schedule 4 to the Bill, which would repeal subsection 89(2)). New paragraph 87(3)(b) would have the effect that in all cases where the Registrar notifies persons of a decision on an objection under subsection 87(1), the Registrar must inform them of the right to external merits review by the amalgamated Tribunal.

Item 44 - Paragraph 87AA(4)(b)

1356. Item 44 would amend paragraph 87AA(4)(b) to omit references to the SSAT and substitute references to the AAT. Existing paragraph 87AA(4)(b) requires that when notifying a person of a determination under subsection 87A(2) in relation to the date of effect of a decision on internal review of a care percentage decision, the Registrar must also notify them of their right to merits review by the SSAT. Amended paragraph 87AA(4)(b) would preserve existing policy and ensure that persons are notified of their right to merits review by the amalgamated Tribunal.

Item 45 - Part VIIA (heading)

1357. Item 45 would repeal the existing heading to Part VIIA, which refers to SSAT review of certain decisions, and substitute a new heading 'Review by Administrative Appeals Tribunal'.

Item 46 - Section 87A

1358. Item 46 would repeal section 87A and substitute a new section 87A.

1359. Existing section 87A is the simplified outline of Part VIIA on SSAT review of certain decisions. New section 87A would provide a revised outline that would explain the AAT merits review function in child support matters.

1360. New section 87A would assist readers by explaining their right to AAT first review and, in limited circumstances, AAT second review. It would also explain the interaction between the AAT Act and the CSRC Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the CSRC Act. New section 87A would also inform readers that the AAT Act provides for court appeals on a question of law from AAT decisions in some circumstances.

Item 47 - Section 88

1361. Item 47 would repeal section 88, which provides the objective of the SSAT. The new objective of the amalgamated Tribunal would be set out in new section 2A of the AAT Act (Item 1 of Schedule 1 to the Bill).

Item 48 - Division 2 of Part VIIA (heading)

1362. Item 48 would repeal the heading to Division 2 of Part VIIA and substitute a new heading to Division 2, 'Application for AAT first review'.

Item 49 - Subdivision A of Division 2 of Part VIIA (heading)

1363. Item 49 would repeal the heading to Subdivision A of Division 2 of Part VIIA since it is no longer necessary.

Item 50 - Section 89 (heading)

1364. Item 50 would repeal the heading to section 89 and substitute a new heading, 'Application for AAT first review'.

Item 51 - Subsection 89(1)

1365. Item 51 would amend subsection 89(1) to omit the reference to a person applying to the SSAT for review, and instead refer to applications being made to the AAT for review.

1366. Existing subsection 89(1) is the core provision conferring an entitlement on persons to apply to the SSAT for merits review. The entitlement applies in relation to the child support decisions set out in the table in subsection 89(1).

1367. The amendments would not change existing policy in relation to who may apply for review, or the types of decisions in respect of which applications for review may be made. The purpose of the amendments is to transfer the review jurisdiction of the former SSAT in child support matters to the AAT. New subsection 89(1) would clarify that review by the AAT of decisions under subsection 89(1) is 'AAT first review'.

Item 52 - Subsection 89(2)

1368. Item 52 would repeal subsection 89(2). Existing subsection 89(2) provides for exceptions to the SSAT's merits review jurisdiction, such that a person cannot apply to the SSAT for review of a decision where either the original decision, or the decision on objection, was a refusal to make a departure determination under section 98E or 98R of the CSA Act because the issues were too complex. At present, in such circumstances persons whose interests are affected by the refusal are required to apply to a court for a determination.

1369. For the reasons outlined in relation to Items 15-19 of Schedule 4 to the Bill (which would make other related amendments), it is no longer appropriate that this category of complex matters is precluded from external merits review. The repeal of subsection 89(2) would have the effect that persons may apply to the amalgamated Tribunal for review of a decision that involved a refusal to make a departure determination because the issues were too complex. This result would arise since those decisions, once the carve-out in existing subsection 89(2) is removed, would fall within Item 2 of the table in subsection 89(1) (decisions under subsection 87(1) on an objection to a decision of the Registrar).

1370. This policy change would increase access to merits review and promote the full utilisation of the amalgamated Tribunal's expertise.

Item 53 - Subdivision B of Division 2 of Part VIIA (heading)

1371. Item 53 would repeal the heading to Subdivision B of Division 2 of Part VIIA since it is no longer necessary.

Item 54 - Sections 90 and 91

1372. Item 54 would repeal sections 90 and 91 and substitute new sections 90 and 91.

New section 90 - Time for applying for review

1373. Existing section 90 sets out time limits for applying for SSAT review. Subsection 90(1) provides that applications (other than for review of a care percentage decision) must be made within 28 days of the person receiving notice of the relevant decision. Subsection 90(2) provides an exception such that residents of reciprocating jurisdictions (that is, certain foreign countries) may make applications for SSAT review within 90 days.

1374. In the amalgamated Tribunal, section 29 of the AAT Act would govern applications for AAT first review of decisions under the CSRC Act. Paragraph 29(1)(d) of the AAT Act has the effect that applications must generally be made within 28 days of the person receiving notice of the relevant decision. Accordingly, new section 90 would only provide for the exceptions where this general rule would not apply. Specifically:

·
new subsection 90(1) would provide that paragraph 29(1)(d) does not apply in relation to an application for AAT first review of a care percentage decision, to preserve the position under existing subsection 90(1) that there is no time limit for applications for review of such decisions, and
·
new subsection 90(2) would preserve the position under existing subsection 90(2) that residents of reciprocating jurisdictions may make applications for review within 90 days.

1375. The note in amended section 90 would alert readers to the effect of paragraph 29(1)(d) of the AAT Act.

1376. The amendments proposed would preserve existing timeframes for applying for review.

New section 91 - Extensions of time to apply for review

1377. Existing section 91 permits a person to make a written application to the SSAT Principal Member to seek an extension of time for applying for review. The person must state reasons for their failure to apply within the required time.

1378. New section 91 would preserve the procedure for applications for extensions of time, but provide that applications may be made to the AAT. New subsection 91(3) would provide that subsections 29(7) to (10) of the AAT Act do not apply in relation to extensions of time sought under the CSRC Act. This is because subsections 29(7) to (10) set out the standard procedure for seeking an extension of time for an application from the AAT, and it would not be appropriate to have dual procedures available in respect of AAT first review.

Item 55 - Section 92 (heading)

1379. Item 55 would repeal the heading to section 92 and substitute a new heading, 'Consideration of applications for extension of time to apply for AAT first review'.

Items 56 - 61 - Applications for extension of time for applying for AAT first review

1380. Items 56 to 61 would amend section 92. Existing section 92 requires the SSAT Principal Member to consider applications for extension of time to apply for review, and prescribes certain procedures associated with such applications. The amendments would reflect the transfer of jurisdiction from the SSAT to the AAT. They would not affect existing policy on the consideration of applications for extension of time.

Item 56 - Subsection 92(1), Item 57 - Paragraph 92(1)(b), Item 58-Paragraph 92(1)(c), Item 59-Subsections 92(1A) and (3)

1381. Item 56 would amend subsection 92(1), Item 57 would amend paragraph 92(1)(b), Item 58 would amend paragraph 92(1)(c), and Item 59 would amend subsections 92(1A) and (3), as follows:

·
references to the SSAT and the SSAT Principal Member would be omitted, and substituted with references to the AAT, and
·
references to applications under section 91 or under Part VIIA would be replaced with references to AAT first review.

1382. The amendments would ensure that applications for extension of time may be made to the amalgamated Tribunal instead of the SSAT.

Item 60 - Subsection 92(4)

1383. Item 60 would repeal existing subsection 92(4) and substitute a new subsection 92(4).

1384. Existing paragraph 92(4)(a) requires the SSAT Principal Member, when notifying the applicant of a decision to refuse an extension application, to also notify the applicant of the right to apply to the AAT for review of the refusal.

1385. Existing paragraph 92(4)(b) further requires that the notification explain that the person may request a statement of reasons for the refusal of the extension application under section 28 of the AAT Act, except where subsection 28(4) of that Act applies (subsection 28(4) has the effect that a person may not apply for a statement of reasons where reasons have previously been provided to them).

1386. New subsection 92(4) would preserve the effect of existing paragraph 92(4)(a). Accordingly, it would require the AAT to notify a person whose extension application is refused of the right to apply to the AAT for review, subject to the CSRC Act and the AAT Act. A note to new subsection 92(4) would state that paragraph 96(a) defines such a review as 'AAT second review'.

1387. It would not be necessary to replicate existing paragraph 92(4)(b), since section 28 of the AAT Act would apply to AAT second reviews of child support matters, including extension applications (see Item 43 of Schedule 1 to the Bill).

Item 61 - Subsections 92(6) to (8)

1388. Item 61 would repeal subsections 92(6) to (8) and substitute a new subsection 92(6).

1389. Existing subsection 92(6) provides that if an extension application is granted, the person who made the application is taken to have duly made the application for review under Part VIIA to which the extension application related. This then triggers the normal processes following receipt of an application (for example, requirements around the provision of documents to the Tribunal: see Item 62 of Schedule 4 to the Bill).

1390. New subsection 92(6) would preserve this position. It would provide that if an extension application is granted, the applicant is taken to have validly made the application for AAT first review in which the extension application was included, for the purposes of the CSRC Act and the AAT Act.

1391. Existing subsections 92(7) to (8) entitle a person to apply to the AAT for review of a decision of the SSAT Principal Member to refuse an extension application. This entitlement to AAT second review would be preserved in new section 96A (Item 64 of Schedule 4 to the Bill).

Item 62 - Section 93

1392. Item 62 would repeal section 93 and substitute a new subsection 93.

1393. Existing section 93 deals with the effect of the making of an application for extension of time in which to apply to the SSAT for review:

·
Pursuant to paragraph 93(aa), the Registrar must send to the SSAT Principal Member, within 28 days of a request, the statement setting out the decision and reasons described in paragraph 95(3)(a).
·
Pursuant to paragraph 93(a), subsections 95(2) to (6) and section 96 are taken not to apply unless and until the extension application is granted by the SSAT or a court. Subsections 95(2) to (6) and section 96 set out various procedures to be followed by the SSAT and the parties on receipt of applications for review.
·
Pursuant to paragraph 93(b), if the extension application is granted, subsection 95(2) applies as if the application for review were received by the SSAT on the day the decision to grant the extension application is made. Subsection 95(2) requires the SSAT to notify the applicant, the Registrar and any other party to the review of receipt of the application, which triggers the Registrar's obligations to provide documents to the Tribunal in sections 95 and 96.

1394. In effect, existing section 93 suspends the normal process for reviews until such time as the SSAT has determined whether a person should be granted an extension of time in which to apply, with the exception in paragraph 93(aa) that the Registrar must provide the initial statement of the decision and reasons, if requested.

1395. New section 93 would modify the AAT Act as necessary so as to preserve the effect of existing section 93.

1396. New subsection 93(1) would provide that section 29AC of the AAT Act does not apply in relation to an application for AAT first review for which an extension application has been made under section 91, unless the AAT or a court decides the extension application has been granted. New section 29AC of the AAT Act (Item 51 of Schedule 1 of the Bill) would require that the parties and other persons whose interests may be affected by the decision are notified of the application for review. The obligations on the Registrar to provide documents under section 37 of the AAT Act would not be triggered until the Registrar receives notification of the application under section 29AC. Accordingly, new subsection 93(1) would preserve the effect of existing paragraphs 93(a) and (b).

1397. New subsection 93(2) would preserve the effect of existing paragraph 93(aa). It would provide that the Registrar must send to the AAT, within 28 days of a request in relation to an AAT first review, the statement described in paragraph 37(1)(a) of the AAT Act-that is, the statement of the decision and reasons. New subsection 93(2) would go beyond existing paragraph 93(aa) by also requiring the Registrar to provide (upon request) the documents described in paragraph 37(1)(b) of the AAT Act-that is, any other documents relevant to the review. This is because the documents relevant to the Registrar's decision can assist the Tribunal to decide the extension of time application. (See Item 74 of Schedule 1 to the Bill).

Item 63 - Subdivisions C, D and E of Division 2 of Part VIIA and Item 64-Divisions 3 to 6 of Part VIIA

1398. Item 63 would repeal Subdivisions C, D and E of Division 2 of Part VIIA, comprising sections 94 to 100A. These provisions would no longer be necessary.

Subdivision C-Application procedures

1399. Subdivision C comprises sections 94 to 98, which deal with:

·
the manner of applying for SSAT review of child support matters (section 94)
·
procedures for notifying the applicant, the Registrar and any other party of the application for review (section 95), and
·
procedures for the provision of documents in relation to the review, including where documents are not required to be provided because of their confidential nature (sections 95 to 97).

1400. After the amalgamation, these matters would be provided for in the AAT Act (as amended by Schedule 1), to the extent necessary to ensure the effective conduct of merits review of child support matters. Specifically, section 29 of the AAT Act will govern how applications for AAT first review may be made, while section 29AC will provide for the Registrar, the applicant and persons whose interests are affected to be notified of the application (Items 46 and 51 respectively of Schedule 1 to the Bill). Sections 35, 37 and 38AA of the AAT Act (Items 66, 74 to 87 of Schedule 1 to the Bill), together with new sections 95C and 95L (Item 64 of Schedule 4 to the Bill), would prescribe rules relating to documents. This would include obligations on the Registrar to provide documents and the power for the Tribunal to make non-disclosure orders to protect confidential documents. These rules would permit existing practice under sections 95 to 97 to continue.

Subdivision D-Effect of variations of original decisions on applications

1401. Subdivision D comprises section 99, which deals with the effect on an application to the SSAT for review of a decision by an officer to vary or substitute the decision under review. The effect of section 99 would be preserved in new section 95B of the CSRC Act (Item 64 of Schedule 4 to the Bill).

Subdivision E-Dismissal of applications

1402. Subdivision E comprises sections 99A to 100A, which deal with the SSAT's powers to dismiss applications for review of child support matters. These provisions would no longer be necessary, as sections 42A and 42B of the AAT Act (as amended by Items 108-115 of Schedule 1 to the Bill) would provide a full suite of dismissal powers for the amalgamated Tribunal.

Item 64 - Divisions 3 to 6 of Part VIIA

1403. Item 64 would repeal Divisions 3 to 6 and substitute:

·
new Division 3 - Other matters relating to AAT first review (sections 95A to 95Q)
·
new Division 4 - Application for AAT second review (sections 96A to 96B)
·
new Division 5 - Other matters relating to AAT second review (sections 97A to 97E), and
·
new Division 6 - Matters relating to both AAT first review and AAT second review (sections 98A-98D).

Existing Divisions 3 to 6

1404. Existing Divisions 3 to 6 apply to SSAT reviews of child support decisions and deal with the following matters:

·
parties to reviews-Division 3
·
directions hearings-Division 3A
·
hearings-Division 4 (procedures related to hearings, submissions, the SSAT's powers to obtain information and other evidence provisions
·
decisions on review-Division 5, and
·
other provisions-Division 6.

1405. Divisions 3 to 6, together with Subdivisions C, D and E of Division 2 (Item 63 of Schedule 4 to the Bill), provide a comprehensive set of procedural rules for SSAT reviews under the CSRC Act. As a result of the amalgamation, this would no longer be necessary. The AAT Act provides a general procedural framework for merits review. Unless otherwise modified or excluded, either in the AAT Act or in the CSRC Act, the AAT Act rules would apply to reviews of child support decisions by the amalgamated Tribunal.

1406. The purpose of new Divisions 3 to 6 would be to make any necessary modifications to the AAT Act, so as to preserve existing procedures in SSAT reviews of child support matters and ensure that they are applied to AAT first reviews of child support matters. New Divisions 3 to 6 would also provide certain additional rules on matters that are not covered in the AAT Act but support the effective conduct of merits review of child support matters. Certain provisions in existing Divisions 3 to 6 would not be replicated, because they are no longer necessary to support the effective conduct of merits review of child support matters.

1407. The content of existing Divisions 3 to 6 would be provided for as follows.

Existing Division 3
·
Section 101 (parties to reviews) would be covered by section 30 of the AAT Act, and new section 95D of the CSRC Act, inserted by this Item.
·
Section 102 (notice of application to persons affected by the decision) would be covered by new section 29AC of the AAT Act (Item 51 of Schedule 1 to the Bill).

Existing Division 3A
·
Section 103 (directions hearings) would be covered by section 33 of the AAT Act.

Existing Division 4
·
Section 103A (arrangements for hearings) would not be necessary to retain. Fixing the day, time and place of hearings is a routine administrative matter that need not be dealt with in legislation. Subsection 42A(7) of the AAT Act requires that a party must be given appropriate notice of the hearing, before the Tribunal can dismiss an application for failure to appear.
·
Sections 103B to 103F (submissions by the parties) would be covered by new section 39AA of the AAT Act (Item 90 of Schedule 1 to the Bill).
·
Section 103G (taking evidence on oath or affirmation) would be covered by subsection 40(1) of the AAT Act.
·
Section 103H (children of parties not to give evidence) would be covered by new section 98A of the CSRC Act, inserted by this Item.
·
Sections 103J to 103L (information gathering powers of the SSAT) would be covered by new sections 95G to 95J of the CSRC Act, inserted by this Item.
·
Section 103M (presiding member) would be covered by amended section 19A of the AAT Act (Item 27 of Schedule 1 to the Bill).
·
Section 103N (hearing procedure) would be covered by section 33 of the AAT Act.
·
Section 103P (private hearings) would be covered by new section 95K of the CSRC Act, inserted by this Item.
·
Section 103R (adjournment of hearings) would be covered by paragraph 40(1)(c) of the AAT Act.

Existing Division 5
·
Section 103S (power to affirm, vary or set aside decision) would be covered by subsection 43(1) of the AAT Act and new section 95M of the CSRC Act, inserted by this Item.
·
Section 103T (powers of the SSAT for the purposes of reviews) would be covered by subsection 43(1) of the AAT Act and new section 95E of the CSRC Act, inserted by this Item.
·
Section 103U (resolving disagreements) would be covered by amended section 42 of the AAT Act (Item 107 of Schedule 1 to the Bill).
·
Section 103V (date of effect of decisions) would be covered by subsection 43(6) of the AAT Act and new section 95N of the CSRC Act, inserted by this Item.
·
Section 103VA (appeals to the SSAT from the AAT) would be covered by new section 96A of the CSRC Act, inserted by this Item.
·
Section 103W (dismissal by consent) would be covered by section 42C of the AAT Act.
·
Section 103X (notification of decision and reasons) would be covered by section 43 of the AAT Act and new section 95P of the CSRC Act, inserted by this Item.
·
Section 103Y (correction of errors) would be covered by section 43AA of the AAT Act.
·
Section 103Z would not be retained as it is no longer necessary. Section 103Z provides that the SSAT may determine that the Commonwealth is to pay reasonable travel and accommodation costs incurred by a party in connection with a review, or costs incurred in relation to medical services arranged by the SSAT. This power is not used in practice. Parties often opt for hearings by electronic means, as this is less costly and more time-efficient (especially for persons caring for children). The SSAT does not typically require parties to obtain additional medical evidence for the purposes of determining the review.

Existing Division 6
·
Section 103ZA (directions as to procedure in reviews) would be covered by section 33 of the AAT Act and new section 95Q of the CSRC Act, inserted by this Item.
·
Sections 103ZAA to 103ZAC (non-disclosure orders) would be covered by subsections 35(3) and (4) of the AAT Act (as amended by Item 66 of Schedule 1 to the Bill) and new sections 98B to 98D of the CSRC Act, inserted by this Item.

New Division 3 - matters relating to AAT first review

1408. New Division 3 would set out matters relating to AAT first review.

New section 95A-Operation and implementation of decision under AAT first review

1409. New section 95A would ensure that subsection 41(2) of the AAT Act would not apply to AAT first reviews. Subsection 41(2) of the AAT Act empowers the AAT to issue orders staying or otherwise affecting the operation or implementation of the decision under review. The SSAT does not have the power to make stay orders. Accordingly, new section 95A would preserve existing policy. Parties would be entitled to seek stay orders in a court in relation to AAT first reviews of decisions under the CSRC Act, pursuant to Part VIIIB (see section 111C, as amended by Items 85 to 86 of Schedule 4 to the Bill).

New section 95B-Variation of original decision after application is made to AAT for AAT first review

1410. New subsections 95B(1) and (3) would replicate existing section 99, and would deal with the effect of variation by the Child Support Registrar of a decision under review by the AAT.

1411. New section 95B would preserve existing policy whereby if the Registrar varies or sets aside and substitutes a decision under review, the application for review is taken to be an application for the review as varied. The applicant may choose to continue with the review or may notify the AAT under subsections 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

1412. New subsection 95B(2) would require the Child Support Registrar to give written notice to the Registrar of the AAT, where the Registrar varies or sets aside and substitutes a decision under review. This requirement is important to ensure that the Tribunal is made aware of any change to the decision under review (which may also involve new information relevant to the review), and would rectify an omission in the CSRC Act.

New section 95C-Procedure on receipt of application for AAT first review

1413. New section 95C would replicate existing subsection 95(4). New section 95C would empower the AAT to request the Child Support Registrar to provide documents to the Tribunal earlier than the 28 period required under subsection 37(1) of the AAT Act. The Registrar would be required to take reasonable steps to comply with such a request. New section 95C would not affect, and would be additional to, the power of the AAT to shorten the time frames for lodging documents under section 37(1A) of the AAT Act.

New section 95D-Parties to AAT first review

1414. New section 95D would replicate existing paragraph 101(1)(c), which provides that any person who is entitled to apply to the SSAT for review of a decision automatically becomes a party to the AAT review. This would ensure that the interests of all affected parties are considered during the review. New subsection 95D would apply in addition to subsection 30(1) of the AAT Act, which describes the persons who may apply to be made parties to an AAT review.

New section 95E-Powers of AAT for purposes of AAT first review

1415. New section 95E preserve the effect of existing subsection 103T(3).

1416. New section 95E would modify the effect of subsection 43(1) of the AAT Act. Subsection 43(1) provides that the Tribunal may exercise all of the powers and discretions conferred on the original decision-maker. Section 95E would limit subsection 43(1) in relation to AAT first reviews, such that the AAT would not be permitted to exercise a power or discretion conferred on the Registrar by a prescribed provision of the Act. For example, at present, Regulation 7A of the Child Support (Registration and Collection) Regulations 1988 provides that the SSAT may not exercise certain powers (as listed in Schedule 3) under subsection 103T(3).

New sections 95F-95J-Information gathering powers for purposes of AAT first review

1417. New section 95F would provide that section 40A of the AAT Act (the summons power) would not apply in relation to an AAT first review. Instead, new sections 95G, 95H and 95J would set out alternative information gathering powers for the amalgamated Tribunal. These provisions would preserve the effect of existing sections 103J, 103K and 103L respectively.

1418. Section 95G would permit the AAT to request the Registrar to provide information or documents relevant to an AAT first review. The Registrar must comply with such a request as soon as practicable, and no later than within 14 days.

1419. Section 95H would permit the AAT to issue a notice requiring any person it reasonably believes has information or a document relevant to an AAT first review to give such information, produce such documents or attend to answer questions. Consistent with existing subsection 103K(2), subsection 95H(2) would make it an offence for the person to fail to comply with such a notice. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection 61(2) would insert a specific defence of self-incrimination to the offence in subsection 95H(2). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

1420. The note to subsection 95H(3) would state that a defendant bears an evidential burden in relation to the matter in that subsection - see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

1421. Finally, in relation to section 95H, legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

1422. Section 95J would permit the AAT to require the Registrar to exercise the Registrar's power under section 161 of the CSA Act or section 120 of the CSRC Act to obtain information from a person if the AAT is satisfied that person has information or a document relevant to an AAT first review. The Registrar must comply with such a request as soon as practicable, and no later than within 7 days.

1423. The powers in new sections 95G, 95H and 95J are more appropriate to the conduct of AAT first reviews than the summons power in section 40A of the AAT Act. In particular, it would assist the amalgamated Tribunal to continue to have access to the compulsory information gathering powers of the Registrar, especially in circumstances where information is held by third parties subject to strict confidentiality requirements (for example, the Australian Taxation Office). The specific timeframes in sections 95H and 95L would also promote the expeditious conduct of reviews.

New section 95K-Hearing of AAT first review in private

1424. New section 95K would preserve the effect of existing section 103P.

1425. Existing section 103P requires that hearings of an SSAT review must be held in private, with the SSAT empowered to give directions as to who may be present, having regard to the wishes of the parties.

1426. To this end, new section 95K would provide that subsections 35(1) and (2) of the AAT Act (which provide the general rule that hearings must be in public) do not apply. The sensitive and personal nature of the information typically disclosed in child support reviews makes privacy a major concern of the parties. Private hearings are accordingly a key feature that should be preserved in AAT first reviews in the amalgamated Tribunal as one means of ensuring that it is accessible and responsive to the needs of applicants.

New section 95L-Non-disclosure orders in relation to AAT first review

1427. New section 95L would replace existing sections 97 and 98, whereby the Child Support Registrar may apply to the SSAT for a direction that the Registrar is not required to give a copy of certain documents to other parties. The amalgamated Tribunal's power to make such directions would be covered by subsections 35(3) and (4) of the AAT Act.

1428. New section 95L(1) would provide that if the Registrar applies to the AAT for a non-disclosure direction under subsection 35(3) or (4) of the AAT Act, the Registrar is not required to give a copy of the application to the other parties. New subsection 95L(2) would provide that subsection (1) applies despite subparagraph 37(1AF)(b)(ii), which would otherwise require the Registrar to do so. This exception is intended to ensure that the Tribunal can consider such a request promptly and without notice to the other parties in appropriate cases, especially where there may be safety concerns due to a history of violence between the parties.

New section 95M-Decision on AAT first review of care percentage decision

1429. New section 95M would preserve the effect of existing subsection 103S(2).

1430. New section 95M would modify the effect of section 43(1) of the AAT Act. Section 43(1) of the AAT Act empowers the AAT to issue a decision on review that affirms, varies, or sets aside (and substitutes or remits) a decision. New section 95M would impose a limitation on the amalgamated AAT's powers under subsection 43(1) in respect of AAT first reviews. If the AAT has reviewed a decision on an application under sections 111 or 142 of the FAA Act, and the decision involved a review of a determination to which a care percentage decision relates, the AAT must not, on AAT first review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination that has been reviewed under the FAA Act.

1431. This rule manages the interaction between child support law and family assistance law. It is existing policy, and provides certainty to the parties that a previous decision on review which applies for the purposes of both laws will not be later varied by the Tribunal in another review at an equivalent level (that is, another first review).

New section 95N-Date of effect of AAT first review decision relating to care percentage decision

1432. New section 95N would preserve the effect of existing section 103V, insofar as it concerns the date of effect of SSAT decisions on review of care percentage decisions.

1433. New section 95N would modify the effect of subsection 43(6) of the AAT Act. Section 43(6) of the AAT Act provides that where the AAT varies or substitutes a decision on review, the decision has effect from the day the original decision was made. New section 95N would modify the rule in subsection 43(6) in relation to AAT first reviews as follows:

·
Subsection 95N(1) would provide that if a person applies for AAT first review more than 28 days-or for residents of reciprocating jurisdictions, more than 90 days-after receiving notice of the decision, the AAT's decision has effect from the day the application was made (not the day the original decision was made).
·
However, pursuant to subsection 95N(2), if the AAT were satisfied that special circumstances prevented the application being made in time, the AAT may determine that subsection 95N(1) applies as if the application were made in such longer timeframe as the AAT determines to be appropriate.
·
Subsection 95N(3) would require the AAT to provide a written notice of a decision to make a determination under new subsection 95N(2) to each person affected by the decision.
·
A note would be inserted at the end of section 95N to inform the reader that pursuant to new paragraph 96A(c), an application for AAT second review may be made in relation to a determination under subsection 95N(3).

1434. These rules in new section 95N concerning the date of effect of an AAT decision on first review in relation to care percentage decisions reflect existing policy. The rules would provide an incentive to persons to make timely applications for reviews, while the AAT's ability to backdate its decisions is sufficiently flexible to ensure a fair outcome in individual cases.

New section 95P-Notification of decisions and reasons for AAT first review

1435. New section 95P would modify the effect of subsections 43(2) and (2A) of the AAT Act to preserve the effect of existing section 103X. Subsections 43(2), (2A) and (3) provide the regime for the Tribunal to notify parties of its decision to affirm, vary, or set aside a decision (and remit the matter or substitute a new decision) and provide reasons either orally or in writing. The modifications in new subsection 95P would preserve the following key differences between the SSAT and the AAT:

·
the AAT would be required to issue reasons within 14 days after making the decision, and
·
where oral reasons are provided, the timeframes for a party to request written reasons, and for the Tribunal to respond, are 14 days (as opposed to 28 days in the AAT Act).

1436. New section 95P would promote the quick conduct of reviews, which is an important feature of the SSAT, in the amalgamated Tribunal.

New section 95Q-Directions in relation to AAT first reviews

1437. New section 95Q would preserve the effect of existing section 103ZA, insofar as it empowers the SSAT Principal Member to make general directions that are legislative instruments setting out the SSAT's procedure on child support reviews (paragraph 103ZA(1)(a) and subsection 103ZA(8)). The SSAT Child Support Review General Directions 2012 are made under this power. The status of general directions as legislative instruments shores up the validity of actions taken pursuant to those directions, since they cannot be challenged as administrative decisions. This is desirable in light of the litigious nature of the child support jurisdiction.

1438. New subsections 95Q(1) to (2) would provide the same power to make legislative instruments, insofar as it relates to AAT first reviews, to the President of the AAT. Such directions must not be inconsistent with the CSA Act or the CSRC Act. In practice the President might delegate the power in section 95Q to the relevant Division Head.

1439. New subsection 95Q(3) would clarify that section 95Q does not limit the President's powers to give directions under the AAT Act in relation to AAT first reviews. Accordingly, it would be possible for directions in relation to AAT first reviews of child support matters to be made under the AAT Act or under section 95Q of the CSRC Act.

Division 4 - application for AAT second review

1440. New Division 4 would contain provisions dealing with applications for AAT second review.

New section 96A-Application for AAT second review

1441. New section 96A would be the core provision entitling persons to apply for second review of the following decisions on AAT first review:

·
a decision under section 92 to refuse an application for an extension of time in which to apply to the SSAT for review: paragraph 96A(a) (referred to hereafter as 'extension applications'.)
·
a decision under subsection 43(1) of the AAT Act on an AAT first review of a care percentage decision: paragraph 96A(b), and
·
a decision under subsection 95N(2) to make, or not to make, a determination relating to the date of effect of a care percentage decision: paragraph 96A(c) (referred to hereafter as 'care percentage date determinations').

1442. These categories of decision are the same as the SSAT decisions in respect of which a person may currently seek AAT review, under existing subsection 92(7) and section 103VA of the CSRC Act. Accordingly, there would be no change to existing policy.

New section 96B-Notice of application for AAT second review

1443. New section 96B would preserve the effect of existing section 110XA.

1444. Existing section 110XA modifies subsection 29(11) of the AAT Act in relation to reviews of care percentage decisions (and care percentage date determinations) by the AAT. Subsection 29(11) requires the Tribunal to give notice of an application for review to the person who made the decision. Existing section 110XA has the effect that the parties to the SSAT review are notified of the application to the AAT for further review.

1445. New section 96B would modify the effect of paragraph 29AC(1)(b) of the AAT Act (which would replace subsection 29(11): Item 51 of Schedule 1 to the Bill). New subsection 96B(1) would have the effect that the Child Support Registrar would be notified of an application for second review of an extension application. New subsection 96B(2) would have the effect that each party to the AAT first review (other than the applicant) would be notified of an application for second review of a care percentage decision or a care percentage date determination.

Division 5 - Other matters relating to AAT second review

1446. New Division 5 would contain provisions dealing with other matters relating to AAT second review. In particular, it would contain provisions that modify the AAT Act so that its operation on AAT second review is clear (similarly to new section 96B in Division 4). This is necessary since the AAT Act is not primarily drafted to cover the situation where the decision under review is a decision by another Tribunal, as opposed to an agency decision-maker. The CSRC Act currently provides for such modifications. The amendments for the most part would make minor terminology changes to reflect the new defined term 'AAT second review'.

New section 97A-Parties to AAT second review

1447. New section 97A would preserve the effect of existing section 110XB.

1448. Existing section 110XB modifies the application of paragraph 30(1)(b) of the AAT Act-which provides for the parties to a review- in relation to AAT reviews of SSAT decisions on review of care percentage decisions. The modification ensures that the SSAT is not a party to the AAT review, but rather that the parties to the SSAT review are parties to the AAT review.

1449. New subsection 97A(1) would modify paragraph 30(1)(b) of the AAT Act in relation to extension applications, with the effect that the Child Support Registrar is a party to the AAT second review.

1450. New subsection 97A(2) would modify paragraph 30(1)(b) of the AAT Act in relation to care percentage decisions and care percentage date determinations, with the effect that the parties to the AAT first review are parties to the AAT second review.

New section 97B-Operation and implementation of decisions-AAT second review

1451. New section 97B would preserve the effect of existing section 110XE.

1452. Existing section 110XE modifies the application of section 41 of the AAT Act-which provides the Tribunal's power to make stay orders- in relation to a review by the AAT of an SSAT decision on review of a care percentage decision.

1453. New subsections 97B(1) and (2) would modify the application of section 41 of the AAT Act in relation to AAT second reviews of care percentage decisions under paragraph 96A(b) of the CSRC Act, with the effect that:

·
the AAT may stay the decision made by the Registrar that was the subject of AAT first review and/or the decision made by the AAT on AAT first review, and
·
the parties to the AAT first review have the opportunity to be heard under section 41 in relation to an application to the AAT for a stay order in relation to the decision pending AAT second review.

New section 97C-Variation of original decision after application is made for AAT second review

1454. New section 97C would deal with the effect of variation by the Child Support Registrar of a care percentage decision (under paragraph 96A(b)) that is subject to second review by the AAT. There is no existing provision dealing with this matter. This existing omission could unintentionally create doubt as to the ability of the Child Support Registrar to exercise powers under the CSRC Act to vary a decision while an AAT second review is pending. New section 97C is otherwise the same in effect as new section 95B, which applies to AAT first reviews (inserted by this Item).

New section 97D-Failure of party to appear at AAT second review

1455. New section 97D would preserve the effect of existing section 110F.

1456. Existing section 110XF modifies the application of subsection 42A(2) of the AAT Act in relation to care percentage decisions. Subsection 42A(2) provides the Tribunal's power to dismiss an application or remove a party if a party fails to appear. The modification ensures that the reference to the person who made the decision in subsection 42A(2) is a reference to the Child Support Registrar rather than the SSAT.

1457. New section 97D would make the same modification in relation to AAT second review, with the effect that the dismissal powers only apply to parties other than the Secretary.

New section 97E-Decision on AAT second review of care percentage decision

1458. New section 97E would modify the effect of section 43(1) of the AAT Act to preserve the effect of existing subsection 103VA(1A). Section 43(1) of the AAT Act empowers the AAT to affirm, vary, or set aside a decision (and remit the matter or substitute a new decision). Section 103VA(1) provides that if the AAT has reviewed a decision under section 142 of the FAA Act (that is, an application for second review), and the decision involved a review of a care percentage date determination, the AAT must not vary or substitute the decision on an AAT second review of a child support decision, in a way that would have the effect of varying or substituting the determination that has been reviewed under the FAA Act.

1459. New section 97E would preserve this limitation on the amalgamated AAT's powers under subsection 43(1) in respect of AAT second reviews. This is existing policy. Its purpose is to manage the interaction between child support law and family assistance law. It provides certainty to the parties that a previous decision on AAT second review which applies for the purposes of both laws will not be later varied by the Tribunal in another AAT second review (that is, at an equivalent level).

Division 6 - Matters relating to both AAT first review and AAT second review

New section 98A-Evidence of children in AAT first reviews and AAT second reviews

1460. New section 98A would preserve and clarify the scope of existing section 103H.

1461. Existing section 103H provides that a person who is the child of a party, or for whom a party is a non-parent carer, may not give evidence for the purposes of a child support review in the SSAT. The interpretation of this provision over time has led to some uncertainty as to its scope. It is not clear what constitutes 'evidence' and whether this includes communications such as text messages or emails from a child to their parent. Further, the Federal Magistrates Court (as it then was) interpreted 'child' as meaning a biological descendant rather than a minor. Finally, the omission of reference to the AAT has had the unintended effect that the provision may not apply in AAT reviews of child support decisions by the SSAT.

1462. The rationale behind existing section 103H was stated in the Explanatory Memorandum to the Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Bill 2006 as being 'to protect children from being pressured to support a particular parent's or carer's position for child support purposes, which would be damaging to the child's continuing relationship with both parents and/or their carers'.

1463. New section 98A would give effect to this policy while clarifying the scope of the prohibition, such that it would apply only to persons under 18 who are the child of a party or for whom a party is a non-parent carer, and only in relation to oral testimony. It would apply to AAT first reviews and AAT second reviews.

New sections 98B and 98C-Non-disclosure orders

1464. New sections 98B and 98C would replicate existing sections 103ZAA and 103ZAC, which concern non-disclosure orders and secondary non-disclosure orders respectively.

1465. Existing subsection 103ZAA(1) empowers the SSAT Principal Member to make non-disclosure orders. It is an offence pursuant to subsection 103ZAA(3) to breach such an order. Subsections 103ZAA(2) and 103ZAA(4) clarify the permissible scope of orders. Subsection 103ZAA(2) provides that an order may only specify information that has been disclosed for the purposes of the review, while subsection 103ZAA(4) provides that an order does not apply to information which a person knew before the disclosure for the purposes of the review was made.

1466. The amalgamated AAT's power to make non-disclosure orders would be set out in subsections 35(3) and (4) of the AAT Act (Item 66 of Schedule 1 to the Bill). This power would be sufficiently broad to cover the power in section 103ZAA of the CSRC Act. The AAT Act would also provide for an offence of breaching a non-disclosure order (new section 62C, inserted by Item 144 of Schedule 1 to the Bill).

1467. Nonetheless, new section 98B would provide that to avoid doubt, an order made under subsections 35(3) and (4) of the AAT Act (in relation to an AAT first review or an AAT second review):

·
may only prohibit or restrict the publication or other disclosure of information that has been disclosed for the purposes of the review: subsection 98B(1), and
·
does not apply to information the person knew before it was disclosed for the purposes of the review: subsection 98B(2).

1468. New section 98B is essentially declaratory of the scope of the power to make non-disclosure orders under new subsections 35(3) or (4) of the AAT Act, and should not be read as impliedly limiting or expanding that power. It is intended to assist parties in child support matters to understand their obligations. It would also assist the Tribunal in responding to allegations by one party of a breach by another party of their obligations, where those allegations are ill-conceived because the information in question was not obtained from documents given to the party in the course of the review.

1469. In relation to secondary non-disclosure orders, existing subsection 103ZAC(1) empowers the SSAT Principal Member to make such orders in circumstances where a primary order has been made under existing section 103ZAA. The secondary order may direct a person who is the recipient of information under the primary order not to disclose the information. Existing subsection 103ZAC(2) makes it an offence for a person to breach a secondary non-disclosure order. Existing subsection 103ZAC(3) provides that an order does not apply to information which the person knew before the disclosure for the purposes of the primary order was made.

1470. New section 98C would preserve the effect of existing section 103ZAC, but in circumstances where the primary order is made under new subsections 35(3) or (4) of the AAT Act. New section 98C is not intended to impliedly limit the operation of subsections 35(3) or (4) of the AAT Act, which are sufficiently broad to permit the making of secondary non-disclosure orders. Instead, the purpose of new section 98C is to assist the Tribunal and the parties to understand the scope of such orders. For example, new section 98C may assist persons who have been permitted to make submissions on behalf of a party in a child support matter to understand their obligations, especially in light of the sensitive information about other persons to which they will be privy.

1471. New subsection 98C(3) would preserve the offence of breaching a secondary non-disclosure order in existing section 103ZAC. The note to subsection 98C(4) states that a defendant bears an evidential burden in relation to demonstrating that he or she had prior knowledge of the information in the secondary non-disclosure order-see subsection 13.3(3) of the Criminal Code. It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The recipient of the information that is subject to the order would be best placed to know whether he or she knew the information before they were given the information at the review, and to produce appropriate evidence accordingly.

1472. The penalty for the offence in section 98C would be increased to imprisonment for 12 months or 60 penalty units (consistently with other offence provisions in the Bill). This amendment would reflect the seriousness of conduct that undermines the Tribunal's statutory review function.

New sections 98D-Parties to court proceedings-AAT first review or AAT second review

1473. New section 98D would preserve the effect of existing section 110D, which ensures that the parties to an SSAT review are parties to any court proceeding on appeal from the SSAT decision. New section 98D would have the effect that the parties to an AAT first review, or an AAT second review, are parties to any appeal to a court on a question of law under Part IVA of the AAT Act in relation to that review. The reference to appeals under the AAT Act would flow from the changes proposed to judicial review (Item 66 of Schedule 4 to the Bill).

Item 65 - Section 103ZB

1474. Item 65 would repeal section 103ZB and insert a new section 103ZB, being a simplified outline of Part VIII. Part VIII deals with the jurisdiction of the courts in relation to matters arising under the Act. The new simplified outline would omit mention of the SSAT and appeals from SSAT decisions to courts. It would provide instead that appeals on questions of law from decisions of the AAT are dealt with under the AAT Act. This flows from the changes proposed at Item 66 of Schedule 4 to the Bill to judicial review pathways for decisions from the former SSAT.

Item 66 - Division 3 of Part VIII

1475. Item 66 would repeal Division 3 of Part VIII, which provides for appeals and references of questions of law from the SSAT to the courts.

1476. The existing regime in Division 3 has the result that jurisdiction to hear appeals from SSAT decisions in child support matters is conferred on the Family Court, the Federal Circuit Court and certain State and Territory courts. This proliferation of jurisdictions is unnecessary and potentially confusing for applicants, many of whom are unrepresented. In practice the vast majority of matters are heard by the Federal Circuit Court, which has established a specialist child support panel to manage this caseload. The number of matters handled per annum by the Federal Circuit Court is relatively small (42 appeals from the SSAT were filed during 2013-14).

1477. Under Part IVA of the AAT Act, appeals on a question of law lie from decisions of the AAT to the Federal Court. The Federal Court may transfer matters to the Federal Circuit Court, except where the decision was made by the Tribunal constituted by a member who is a judge. The amalgamation provides an opportunity to streamline judicial review pathways for child support matters on AAT first review by repealing Division 3 of Part VIII and applying Part IVA of the AAT Act in its place. This would simplify the options for the parties and create greater consistency on appeals across the amalgamated Tribunal (while noting that judicial review of most migration matters will continue to be governed by the Migration Act).

1478. It is proposed that Part IVA of the AAT Act would be amended to confer jurisdiction on the Federal Circuit Court, in addition to the Federal Court, in respect of AAT first reviews of child support matters only (new section 44AAA, inserted by Item 129 of Schedule 1 of the Bill). This would preserve the availability of the Federal Circuit Court and recognise its existing role in this area of law.

Item 67 - Section 110N

1479. Item 67 would repeal the simplified outline at section 110N, and substitute a new section 110N with a revised simplified outline of Part VIIIA-Other provisions relating to review of decisions. The revised outline would include the information that:

·
the reconsideration of a decision by the Registrar, the AAT or a court does not affect the operation of the decision or prevent action being taken to implement it, and
·
a person might commit an offence if the person publishes an account of a proceeding in the AAT for AAT first review or AAT second review, or in a Federal Court or Federal Circuit Court appeal related to such a review, that identifies persons involved.

1480. The revised outline would omit reference to Division 5 of Part VIIIA, which would be repealed (Item 79 of Schedule 4 to the Bill).

Item 68 - Subsection 110P(2)

1481. Item 68 would repeal subsection 110P(2) and substitute a new subsection 110P(2). Section 110P defines the scope of Division 1 of Part VIIIA, which deals with the effect of pending reconsiderations on assessments, registrations etc.

1482. Existing subsection 110P(2) provides that Division 1 is subject to section 111C (stay orders). Section 111C currently provides for the power of a court to make stay orders in relation to proceedings including review proceedings before the SSAT. However, section 111C (and Division 1 more generally) does not currently deal with AAT proceedings. This is an omission which should be rectified, given that the AAT has the power to make stay orders:

·
On AAT second review, the AAT may make a stay order under subsection 41(2) of the AAT Act.
·
Section 44A of the AAT Act empowers the Federal Court to make a stay order on an appeal from the AAT.
·
New section 44AAA of the AAT Act (Item 129 of Schedule 1 to the Bill) would have the effect that the Federal Circuit Court may also make stay orders on appeals from the AAT.

1483. The operation of Division 1 of Part VIIIA of the CSRC Act should not interfere with these powers. Accordingly, new subsection 110P(2) would provide that Division 1 is subject to the following provisions, which authorise the making of stay orders:

·
section 111C of the CSRC Act
·
section 41 of the AAT Act, and
·
section 44A of the AAT Act (in relation to the Federal Court), including as it applies because of paragraph 44AAA(2)(b) of the AAT Act (in relation to the Federal Circuit Court).

Item 69 - Paragraphs 110Q(b) and (c)

1484. Item 69 would repeal paragraphs 110Q(b) and (c) and substitute new paragraphs 110Q(b) and (c).

1485. Existing section 110Q defines the term 'reconsideration' for the purposes of the CSRC Act. Paragraphs 110Q(b) and (c) provide that 'reconsideration' includes an application to the SSAT under Part VIIA, and an appeal to a court from an SSAT review under Division 3 of Part VIII.

1486. New paragraphs 110Q(b) and (c) would provide that 'reconsideration' for the purposes of the CSRC Act includes an application to the AAT for AAT first review or AAT second review, and an appeal to a court from an AAT review under Part IVA of the AAT Act.

1487. These amendments would rectify the existing gap whereby AAT second review proceedings do not fall within the definition of "reconsideration", and would also include appeals under Part IVA of the AAT Act.

Item 70 - Section 110V

1488. Item 70 would amend section 110V to omit reference to the 'SSAT' and substitute 'AAT'. Section 110V provides that when the Registrar, the SSAT or a court makes a decision on reconsideration, the Registrar must immediately take such action as is necessary to give effect to the decision. The amendment would ensure that section 110V applies to the amalgamated Tribunal.

Item 71 - Subsection 110W(1), Item 72-Subparagraph 110W(4)(b)(ii), Item 73-Subparagraph 110W(4)(b)(iii)

1489. Item 71 would repeal subsection 110W(1) and substitute new subsections 110W(1) and (1A).

1490. Existing section 110W describes how to determine when a decision becomes final. Subsection 110W(1) provides that for the purposes of the CSA Act and the CSRC Act, if:

·
a decision is a decision of the SSAT, and
·
an appeal may be made to a court under Subdivision B of Division 3 of Part VIII against the decision, and
·
an appeal is not made within the period for doing so, then
·
the decision becomes final at the end of the period.

1491. Existing section 110W does not incorporate a definition of when AAT decisions become final.

1492. New subsection 110W(1) would preserve the effect of existing subsection 110W(1). It would provide that if:

·
a decision is a decision of the AAT on AAT first review or second review, and
·
for a decision on AAT first review-no application may be made for AAT second review, and
·
an appeal may be made to a court under the AAT Act, and
·
an appeal is not made within the period for doing so, then
·
the decision becomes final at the end of the period.

1493. New subsection 110W(1A) would provide that if:

·
a decision is a decision of the AAT on AAT first review, and
·
an application may be made for AAT second review, and
·
an application is not made within the period for doing so, then
·
the decision becomes final at the end of the period.

1494. New subsections 110W(1) and (1A) would retain the effect of existing section 110W, while also rectifying the omission that it does not cover AAT second review. References to Division 3 of Part VIII would be removed in light of its repeal (Item 66 of Schedule 4 to the Bill).

1495. Subsection 110W(4) describes when decisions of the Registrar become final. In that context subparagraphs 110W(4)(b)(ii) and 110W(4)(b)(iii) refer to the SSAT and to appeals under Subdivision B of Division 3 of Part VIII. Items 72 and 73 would amend subparagraphs 110W(4)(b)(ii) and 110W(4)(b)(iii) to remove these references and substitute references to the AAT and Part IVA of the AAT Act, respectively. These consequential amendments would flow from the abolition of the SSAT and the repeal of Division 3 of Part VIII (Item 66 of Schedule 4 to the Bill).

Items 74 to 78 - Section 110X

1496. Items 74 to 78 would amend section 110X, which provides restrictions on the publication of review proceedings under Part VIIA (SSAT proceedings) or Division 3 of Part VIII (appeals to courts from SSAT proceedings). No change to existing policy is intended.

1497. Item 74 would amend paragraph 110X(1)(a) to omit reference to proceedings under Part VIIA or Division 3 of Part VIII, and substitute reference to 'designated review proceedings'. Item 76 would make the same amendment to paragraph 110X(3)(a).

1498. Item 75 would amend subparagraph 110X(3)(a)(ii) to refer to the AAT instead of the SSAT.

1499. Item 77 would repeal paragraph 110X(4)(e) and substitute new paragraph 110X(4)(e), with the effect that subsections 110X(1) and (3) would not apply to the publication by the AAT of lists of designated review proceedings.

1500. Item 78 would insert a new definition of 'designated review proceedings' into subsection 110X(7). This term would mean proceedings in the AAT for AAT first review or AAT second review, or proceedings in a court under Part IVA of the AAT Act in relation to such a review.

1501. These amendments would ensure that the restrictions and protections around the publication of review proceedings in section 110X would apply to the amalgamated Tribunal.

Item 79 - Division 5 of Part VIIIA

1502. Item 79 would repeal Division 5 of Part VIIIA, which deals with modifications of the AAT Act in relation to AAT review. Division 5 comprises sections 110XA, 110XB, 110XC, 110XD, 110XE and 110XF. These sections have been renumbered and relocated to new Division 5 of Part VIIA (other matters relating to AAT second review) (Item 64 of Schedule 4 to the Bill).

Item 80 - Paragraph 110Y(5)(b)

1503. Item 80 would amend paragraph 110Y(5)(b).

1504. Existing section 110Y deals with the date of effect of decisions on internal review under the FAA Act that apply for child support purposes. Paragraph 110Y(5)(b) would provide that a notice given to a person in relation to a determination on the date of effect of a decision must include a statement to the effect that if the person is aggrieved by the decision, application may be made to the SSAT for review.

1505. New paragraph 110Y(5)(b) would provide for notification that applications may be made to the AAT. No other change to existing policy is intended.

Item 81 - Section 110Z (heading)

1506. Item 81 would repeal the heading to section 110Z and substitute a new heading, 'Date of effect of AAT first reviews under the FAA Act that apply for child support purposes'. This change would be necessary as the existing heading refers to the SSAT.

Items 82 - Paragraph 110Z(1)(a) and Item 83-Paragraph 110Z(5)(b)

1507. Item 82 would repeal paragraph 110Z(1)(a) and substitute a new paragraph 110Z(1)(a). Item 83 would amend paragraph 110Z(5)(b).

1508. Existing section 110Z of the CSRC Act deals with the date of effect of SSAT decisions on reviews under the FAA Act that apply for child support purposes. Paragraphs 110Z(1)(a) and 110Z(5)(b) would be amended to omit references to the SSAT, and would refer instead to the 'AAT', 'AAT first review', and the AAT Act, as appropriate.

1509. No other change to existing policy is intended.

Item 84 - Section 111A

1510. Item 84 would repeal section 111A and substitute a revised simplified outline of Part VIIIB which deals with other provisions relating to courts.

1511. The revised simplified outline would not refer to the SSAT. Relevantly to the amalgamation, it would clarify that courts under Part VIIIB may not make stay orders in relation to AAT second review, since the AAT Act makes provision for stay orders.

Item 85 - Paragraph 111C(1)(c) and Item 86-Subparagraph 111C(5)(b)(ii)

1512. Item 85 would repeal paragraph 111C(1)(c) and substitute new paragraph 111(1)(c). Item 86 would amend subparagraph 111C(5)(b)(ii).

1513. Existing section 111C provides for the power of courts having jurisdiction under the CSRC Act to make stay orders. Subsection 111C(1) defines the scope of application of section 111C. Pursuant to paragraph 111C(1)(c), section 111C applies if a proceeding has been instituted before the SSAT under Part VIIA of the Act. The effect of section 111C is that a party to an SSAT application may seek a court order staying the decision under review by the SSAT. It is noted that, in practice, this rarely occurs.

1514. New paragraph 111(1)(c) would provide that section 111C applies if a proceeding has been instituted before the AAT for AAT first review. This would preserve the existing position in respect of SSAT reviews. Section 111C would not apply to AAT second reviews, as in such circumstances the AAT has the power to issue a stay order under subsection 41(2) of the AAT Act.

1515. Existing subsection 111C(5) provides that a stay order issued by a court under subsection 111C(3) operates for such period as is specified in the order, or if no such period is specified, until a decision of a court, the Registrar or the SSAT determining the proceeding is final.

1516. New subparagraph 111C(5)(b)(ii) would omit the reference to the SSAT in subsection 111C(5) and replace it with a reference to the AAT. No policy change is intended. The reference to the AAT in subparagraph 111C(5)(b)(ii) should be read consistently with the scope of section 111C to be limited to the AAT on first review.

Item 87 - Subsection 116(1A) and Item 88-Subsection 116(1B)

1517. Item 87 would amend subsection 116(1A) and Item 88 would amend subsection 116(1B).

1518. Section 116 provides that the production of certain documents signed by the Registrar is prima facie evidence of various matters related to registrable maintenance liabilities. Subsection 116(1A) and 116(1B) contain exceptions in relation to particular proceedings, including proceedings under Part VII or VIIA, or under Subdivision B of Division 3 of Part VIII. Proceedings under Part VIIA are SSAT proceedings, while proceedings under Subdivision B of Division 3 of Part VIII are court proceedings on appeal from SSAT proceedings.

1519. Amended subsections 116(1A) and 116(1B) would omit reference to proceedings under Part VIIA and proceedings under Subdivision B of Division 3 of Part VIII, and instead refer to proceedings in the AAT for an AAT first review or AAT second review, or in a court under Part IVA of the AAT Act in relation to such a review. These changes would ensure the integrity of AAT proceedings where a person seeks to challenge aspects of the document signed by the Registrar, whether on first or second review or in court in judicial review proceedings under Part IVA of the AAT Act.


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