LUTON v LESSELS & ANOR

Judges: Gleeson CJ
Gaudron J
McHugh J
Kirby J
Hayne J

Callinan J

Court:
Full High Court of Australia

MEDIA NEUTRAL CITATION: [2002] HCA 13

Judgment date: 11 April 2002

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Callinan J

136. In this case, the plaintiff challenges the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) (``the Collection Act'') and the Child Support (Assessment) Act 1989 (Cth) (``the Assessment Act'') for the collection and payment of money for child support. The matter comes before this Court by way of case stated. The questions raised by it are whether the scheme involves an exaction of tax and an exercise of judicial power.

The facts

137. On or about 1 November 1991 Anthony Luton (``the plaintiff'') and Gillian Lessels (``the first defendant'') began to cohabit as if they were husband and wife. On 1 August 1992

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cohabitation ceased. On 15 February 1993 a child was born of the relationship between the plaintiff and the first defendant.

138. On 9 July 1993 the first defendant who was caring for the child applied to the second defendant, the Child Support Registrar (``the Registrar''), for determination and registration of a child support arrangement under the Collection Act.

139. On 7 August 1993 the second defendant made a determination of the liability of the plaintiff to pay child support.

140. Upon making the assessment referred to in the previous paragraph, the second defendant registered the registrable maintenance liability which arose under that assessment in the Child Support Register pursuant to s 24A of the Collection Act.

141. On or about 18 October 1994, pursuant to s 75 of the Assessment Act, the second defendant amended the assessment made on 7 August 1993 so as to vary the commencement date of the period in respect of which child support was payable by the plaintiff from 12 June 1993 to 9 July 1993.

142. Upon making the amendment referred to in the previous paragraph, the second defendant made appropriate variations to the particulars entered in the Child Support Register pursuant to s 37A of the Collection Act.

143. On or about 10 December 1993, the first defendant made an application under s 98B of the Assessment Act to the second defendant seeking a determination under Pt 6A of the Assessment Act to depart from the provisions of the Assessment Act relating to the administrative assessment of child support, so as to increase the rate of child support payable on the ground that the income, earning capacity, property and financial resources of the plaintiff were not properly reflected in the assessment.

144. On or about 3 February 1994, pursuant to s 98G of the Assessment Act, the plaintiff lodged with the second defendant a reply to the first defendant's application, and by application under s 98B sought a reduction in the rate of child support payable on a number of grounds of the kind for which s 117 of the Assessment Act made provision.

145. On 14 April 1994, Ms Cheryl Peterson, a Child Support Agency Review Officer and a delegate of the second defendant, made a determination pursuant to s 98D of the Assessment Act in the following terms: there should be a departure from the assessment made for the 1993/1994 child support year; for the period 1 January 1994 to 30 June 1994 the child support income of the plaintiff should be $37,188; for the period 1 July 1994 to 30 June 1995 the child support income of the plaintiff should be $38,489.

146. On or about 28 April 1994, the second defendant entered particulars of the determination made on 14 April 1994 in the Child Support Register, pursuant to s 37A of the Collection Act.

147. In relation to subsequent child support years, pursuant to s 31(2)(b) of the Assessment Act, the second defendant has assessed the annual rate of child support payable by the plaintiff.

148. The second defendant has enforced collection of the amounts payable under the various assessments in a number of different ways: by issuing notices (pursuant to s 45(1) and (2) of the Collection Act) to the plaintiff's employers requiring them to make deductions from the plaintiff's salary (in accordance with s 46 of the Collection Act) and to pay those deductions to the second defendant (in accordance with s 47 of the Collection Act); pursuant to s 72 of the Collection Act, by applying an amount owing to the plaintiff by the Commonwealth under the Income Tax Assessment Act 1936 (Cth) against the amount of the debt due to the Commonwealth by the plaintiff under the Collection Act.

149. The plaintiff's employers have made periodic deductions from his salary pursuant to s 46 of the Collection Act and, have paid the amounts deducted, to the second defendant in compliance with s 47 of the Collection Act.

150. The precise questions to which the case gives rise are as follows:

• 1. Is the scheme established by the Collection Act and the Assessment Act for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant a tax?
• 2. If ``yes'' to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?
• 3. Do the Acts in purporting to authorise the second defendant to make the assessments and the determinations, to enter the particulars, to issue the notices, and to

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  collect and apply payments in the way in which the second defendant did, involve the purported exercise of judicial power by the second defendant contrary to Ch III of the Constitution?
• 4. What orders for the further disposition of the action should be made in the light of the answers to these questions?

151. Both Acts have from time to time been amended. No party suggested however that the questions should be answered other than by reference to them in their current form or that the changes would materially affect those answers. The way in which the Acts operate and their key provisions need some explanation.

The Assessment Act

152. The Assessment Act was enacted to ensure that children receive a proper level of financial support from their parents. ^[189] Section 4(1) of the Assessment Act. To this end, the Act makes provision for the payment of child support by a ``liable parent'' to an ``eligible carer'' of a child or children.

153. An ``eligible carer'' or a ``liable parent'' may apply to the Registrar, who is the second defendant, under Pt 4 of the Assessment Act for administrative assessment of child support (ss 25 and 25A). Such an application is properly made if it complies with the requirements of ss 24, 25, 25A and 27 of the Assessment Act which are concerned with the identity of the child in respect of whom the application is made, the identity of the applicant, and formal requirements specified by the Registrar.

154. If the Registrar is satisfied that an application has been properly made, he or she must accept the application: s 30(1). The Registrar must then immediately notify the applicant and other affected persons (s 34), and must, as quickly as practicable, assess the annual rate of child support payable by the liable parent to the carer (s 31(2)). The person who is liable under the Assessment Act may lodge with the Registrar an objection to the decision to accept the application (s 98X). If the objection is disallowed, whether in whole or in part, the objector may apply to a court of competent jurisdiction for a declaration that the applicant is not entitled to administrative assessment of child support under the Assessment Act (s 107).

155. If the Registrar is not satisfied that an application has been properly made, he or she may refuse to accept the application (s 30(2)), and must then immediately notify the applicant (s 33). The unsuccessful applicant may lodge with the Registrar an objection to the decision to refuse to accept the application (s 98X), and if such an objection is disallowed, whether in whole or in part, may apply to a court of competent jurisdiction for a declaration that the applicant is entitled to administrative assessment of child support under the Assessment Act (s 106).

156. The provisions governing the administrative assessment of child support are contained in Pt 5 of the Assessment Act. With some exceptions, the amount of a child support liability is calculated in accordance with a basic formula set out in s 36, the ``child support percentage'', as defined in s 37, multiplied by the ``adjusted income amount'' of the liable parent. The possible exceptions to the application of the basic formula are to be found in other parts of the Assessment Act.

157. Division 2 of Pt 5 sets out modifications of the basic formula in relation to particular situations when either the Registrar or a court makes an order for departure from administrative assessment (under Pt 6A, or Div 4 of Pt 7 respectively); or when parties have entered into a child support agreement under Pt 6.

158. Section 75 confers on the Registrar power to amend an administrative assessment by making such alterations and additions as the Registrar considers necessary to give effect to the Assessment Act, including to correct any error or mistake, or to give effect to the happening of an event or change of circumstances that affects the annual rate at which child support is or was payable.

159. When the Registrar makes an administrative assessment, he or she must immediately give written notice of the assessment to the liable parent and the carer entitled to child support.

160. Both the parent who is liable, and the carer entitled to child support have the right to lodge with the Registrar an objection to the particulars of an administrative assessment (s 98X), and if that objection is disallowed, may appeal to a court of competent jurisdiction against the assessment (s 110).

161. The Assessment Act also makes provision for applications for a departure from

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the ordinary rules relating to administrative assessment of child support. Such applications may initially be made to the Registrar under Pt 6A. The primary grounds for such a departure application are those set out in s 117 in relation to applications to the court which are picked up by s 98C so as to apply to applications to the Registrar. An objection may be lodged with the Registrar to any decision by the Registrar to make or refuse to make a determination under Pt 6A (s 98X). If such an objection is disallowed in whole or in part, the person who lodged the objection may apply under Div 4 of Pt 7 to a court of competent jurisdiction for a departure order (ss 116, 118).

162. In certain circumstances, under Div 3 of Pt 6A (ss 98K-98R), the Registrar can make a determination on his or her own initiative that the provisions relating to administrative assessment should be departed from.

163. The effect of an assessment is that the amount of child support payable becomes a debt due and payable by the liable parent to the carer entitled to child support: s 79.

The Collection Act

164. The objects of the Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by non-custodial parents towards the maintenance of their children are paid on a regular and timely basis: s 3.

165. Part III of the Act provides for the registration of ``registrable maintenance liabilities'', which include liabilities that arise under a child support assessment: s 19(2).

166. Section 24A requires the Registrar to register liabilities arising under a child support assessment by entering particulars of the liability in the Child Support Register unless the payee elects in his or her application not to have the liability enforced under the Collection Act; or if the application for the child support assessment was made by the liable parent.

167. When a child support liability is not registered, the payee may apply to the Registrar for the registration of the liability (s 25). When a child support liability is registered, the payee (either alone or jointly with the payer) may elect to have the liability no longer enforced under the Act: s 38A.

168. The particulars that are required to be entered in the Child Support Register include the names of the payer and payee; details of the child support assessment; the name and date of birth of the relevant child or children; the periodic amounts payable by the payer; and the payment rate and payment period: s 26.

169. When the Registrar amends a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately make such variations to the particulars entered in the Child Support Register as are considered necessary or desirable to enable the amendment to be given effect under the Act (s 37A). The Registrar also has power to vary the particulars entered in the Child Support Register for the purpose of correcting a clerical error or mistake: s 42.

170. Upon registration under s 30, amounts payable under the child support assessment become debts due to the Commonwealth by the payer and the payee is no longer entitled to, and may not enforce payment of the relevant amounts.

171. Part IV of the Act makes provision for the collection of registered child support liabilities by the Commonwealth by deduction from the salary or wages of the payer. The Registrar may give a notice to an employer of the payer specifying the name of the payer and instructing the employer to make periodic deductions from the payer's salary or wages, and to direct payment to the Registrar: s 45. The employer is then under a duty to make such deductions, and to pay to the Registrar the amounts deducted (ss 46 and 47). The deduction and payment of an amount from the salary or wages of a payer operates, to the extent of the payment, as a discharge of the payer's liability to make payments to the Registrar, and as a discharge of the employer's liability to pay the amount to any person other than the Registrar: s 49.

172. Part V makes provision for the payment and recovery of child support debts. It includes a provision which allows the Registrar to apply towards payment of such debts any amounts owing to the debtor by the Commonwealth under an Act of which the Registrar has the administration (either as Child Support Registrar or as Commissioner of Taxation): s 72. The Registrar may also garnishee debts owing by third parties to a child support debtor (s 72A), or make deductions from social security pensions or benefits (s 72AA).

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173. Part VI made provision for the payment of child support to payees from the Child Support Reserve. The Child Support Reserve was established as a component of the Reserved Money Fund, and comprised amounts transferred to the Reserve out of the Consolidated Revenue Fund equal to the amounts received by the Registrar in payment of child support debts. The money is now held and paid out of a special, differently designated account. ^[190] See discussion by Gaudron and Hayne JJ at [ 39]- [ 40].

174. The registration of a child support liability under the Act, or the variation of any particulars entered in the Child Support Register, must be notified to both the payer and the payee: s 80. Part VII confers rights of objection against decisions relating to registration, and of appeal to a court of competent jurisdiction against a decision of the Registrar in relation to an objection.

175. Section 123 of the Collection Act states that the Act ``is not a taxation law within the meaning of the Taxation Administration Act 1953.''

The answers to the questions

176. I turn to the issues raised by questions 1 and 2. In Air Caledonie International v The Commonwealth , ^[191] (1988) 165 CLR 462. Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ discussed the conventional constitutional concept of a tax. Their Honours said: ^[192] (1988) 165 CLR 462 at 466-467 (footnotes omitted).

``In Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Ltd , the Privy Council identified three features which sufficed to impart to the levies involved in that case the character of a `tax'. Those features were that the levies: were compulsory; were for public purposes; and were enforceable by law. In Matthews v Chicory Marketing Board (Vict) , Latham CJ adopted those three features as the basis of what has subsequently been recognized in this Court as an acceptable general statement of positive and negative attributes which, if they all be present, will suffice to stamp an exaction of money with the character of a tax: `a compulsory exaction of money by a public authority for public purposes, enforceable by law, and... not a payment for services rendered'... More recently this Court has drawn attention to other criteria, namely, that a tax is not by way of penalty and that it is not arbitrary...

There are three comments which should be made in relation to the above general statement of Latham CJ. The first is that it should not be seen as providing an exhaustive definition of a tax. Thus, there is no reason in principle why a tax should not take a form other than the exaction of money or why the compulsory exaction of money under statutory powers could not be properly seen as taxation notwithstanding that it was by a non-public authority or for purposes which could not properly be described as public. The second is that, in Logan Downs Pty Ltd v Queensland , Gibbs J made explicit what was implicit in the reference by Latham CJ to `a payment for services rendered', namely, that the services be `rendered to' - or (we would add) at the direction or request of - `the person required' to make the payment. The third is that the negative attribute - `not a payment for services rendered' - should be seen as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes mentioned by Latham CJ are all present. Thus, a charge for the acquisition or use of property, a fee for a privilege and a fine or penalty imposed for criminal conduct or breach of statutory obligation are other examples of special types of exactions of money which are unlikely to be properly characterized as a tax notwithstanding that they exhibit those positive attributes. On the other hand, a compulsory and enforceable exaction of money by a public authority for public purposes will not necessarily be precluded from being properly seen as a tax merely because it is described as a `fee for services'. If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.''

177. Against the background of those remarks by their Honours these observations can fairly be made about the scheme established by the two Acts. Their purpose is not to raise revenue for the Commonwealth. The scheme does not contemplate any net benefit to the

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Commonwealth. The scheme does not confer any direct benefit upon the general community. It does not seek to exact money from the community. It may apply to, and require deductions from a social security pension or benefit payable by the Government (s 72AA of the Collection Act), features which hardly give the scheme the appearance of one for the exaction of a tax. ^[193] Notwithstanding that historically the common law may not have imposed an obligation of support of children upon parents, few in the community, for at least many hundreds of years would doubt that a parent or parents of a child should support that child to the extent that it is reasonable and is possible for him or her to do so, and not leave the burden to be assumed by the rest of the community. The beneficiaries of the scheme are of a limited class: children whose parent or parents would seek to avoid their moral and legal obligations owed to them. The Collection Act extinguishes the debt payable pursuant to the Assessment Act by a liable parent to an eligible carer: it creates a debt payable by a liable parent to the Commonwealth. And, it is important to note, s 76 of the Collection Act confers rights to payment upon an eligible carer of an equivalent amount by the Commonwealth. The result that the Collection Act is intended to achieve, and the means by which it is achieved, have some similarity to what happens when a creditor assigns a debt to another. As a result of the operation of the Acts, the Commonwealth becomes the substitute creditor, for and on behalf of the eligible carer, a situation no doubt very acceptable for the eligible carer and, accordingly of a kind to which a creditor (carer) would be likely to wish to assent.

178. These aspects of the scheme would be immediately sufficient to put beyond doubt any question that it is not one for the exaction of a tax but for the recent decision of this Court in Australian Tape Manufacturers Association Ltd v The Commonwealth . ^[194] (1993) 176 CLR 480. There, amounts of royalties were paid in the first instance by purchasers of blank recording tapes to a collecting society, to be held in a fund for the benefit of copyright owners who were members of the society. The Court was narrowly divided as to the characterization of the legislative scheme there. It was held in that case that the royalty was imposed for a ``public purpose'', namely the compensation of relevant copyright holders. If a purpose of compensating copyright holders is a public purpose, it is not immediately apparent why a purpose of ensuring that child carers receive maintenance for children, should not also be so regarded. The majority there (Mason CJ, Brennan, Deane and Gaudron JJ) regarded the relevant enactment as one for the exaction of money from one group for redistribution for the benefit of another group, with a view to bringing about what was seen to be an equitable outcome. ^[195] (1993) 176 CLR 480 at 504. There was no necessary correspondence between a copyright holder and the purchaser of a blank tape, who might not even use the tape to copy copyright material. By contrast, the amounts payable under this scheme are paid to the Commonwealth by a particular debtor in relation to a particular child or children, and an equivalent amount is paid to the particular person entitled to that amount of child support. It is this feature which makes Australian Tape Manufacturers Association distinguishable and it is unnecessary to consider the Common- wealth's submission that it should be permitted to reopen that case to argue that the correct approach was the minority's (Dawson, Toohey and McHugh JJ).

179. Some further reference to Air Caledonie ^[196] (1988) 165 CLR 462. is however useful, although in this field of discourse, of high moral, social and, in modern times, legal obligations owed to children by parents, and the designing of provisions for an effective means of discharging those obligations, not all of the language used in cases concerned with the payment of money to the Commonwealth by income earners and commercial enterprises has a necessary application. Here, unlike in Air Caledonie , this scheme does not involve an exaction by a public authority for a public purpose of the kind discussed in that case. A person assessed under this scheme may have no ultimate choice but to pay the assessment to the Commonwealth, but the compulsion to pay only arises, if, and only if, the payer has not otherwise discharged the obligation that a parent owes to his or her child or children. It is parenthood that is, and continues to be the source of the obligation. There is a clear connexion between what is payable and what is received in return for it. What is payable is the value of reasonable child support. What is received in return for it, is a discharge of the liability that the parent owes to the child.

180. For these reasons, I am satisfied that the scheme does not involve the exaction of a tax and does not infringe s 55 of the Constitution. ^[197] Section 55 of the Constitution provides: ``Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.'' It is unnecessary to explore the reasoning of the Court, and in particular Fullagar J, as to the reach of s 55, in Re Dymond; Ex parte The Debtor (1959) 12 ATD 1 at 3-4; (1958-1959) 101 CLR 11 at 20-21 .

Judicial power

181. I turn now to what I consider to be the more difficult of the questions, whether the scheme involves the purported exercise by the

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second defendant of judicial power within the meaning of Ch III of the Constitution.

The plaintiff's arguments

182. The plaintiff points out that if the Registrar determines the payer child's support liability in a Pt 6A departure application, and enters his or her decision in the Register, then the outcome of that decision is binding on both the payer and payee. Even though a challenge may be mounted in the courts, the plaintiff submits, the existence of a right of review thereof does not change the nature of the original determination. ^[198] Harris v Caladine (1991) 172 CLR 84 . The obligations of parents to maintain their children are imposed by s 66C of the Family Law Act 1975 (Cth). It is not therefore a new duty imposed by the scheme. The plaintiff accepts that although there are occasions when an issue may lawfully be determined, either administratively or judicially, this is not one of them. The determination of the rights of, and enforceable obligations owed by citizens, is not within the lawful capability of an administrative body. ^[199] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 . Once a child support liability is entered in the Register, it can in fact be enforced, inter alia, by garnisheeing the liable parent's wages and applying against that liability any amounts owed by the Commonwealth to the liable parent.

183. These features, the plaintiff submits, mean that the procedures for which the scheme makes provision involve the exercise of judicial power as described by Griffith CJ in Huddart , Parker & Co Pty Ltd v Moorehead : ^[200] (1909) 8 CLR 330 at 357.

`` [ T]he power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.''

184. Reference was also made to what Kitto J said in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd : ^[201] (1970) 123 CLR 361 at 374.

`` [ A] judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.''

185. A number of the features to which Kitto J referred are present here also. The inquiry to be undertaken is as to facts and the application of the law to them. So too, while the determinations stand, the parties are bound by them. The decisions or determinations here affect defined persons or classes of persons.

The answer to the final question

186. To characterize a judgment in a conventional sense, as a charter for the future is perhaps to overstate the nature and effect of some judgments, for example, declarations as to the illegality of past conduct, ^[202] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 . and may not therefore be a criterion for all judgments. Sometimes the distinctions which have been drawn between executive and judicial power have an appearance of some artificiality. Matters of impression are inescapably involved. The diversity of reasoning of the majority in Harris v Caladine ^[203] (1991) 172 CLR 84. would certainly suggest this to be so. That some degree of delegation of judicial power does not impinge on Ch III but a greater (non-specific) helping of it might, does not, with respect, strike me as a very satisfactory basis for a determination of whether judicial power is, or is not being exercised. Judges are not mere supervisors. Nor do they have the power of appointment of other judges conferred by Ch III upon the Executive. The fact that delegates may be bound to perform their duties in a judicial way provides no substitute for the performance of judicial duties by duly appointed judges. I would doubt whether the ``specified functions'' performed on behalf of courts by officials to which Windeyer J referred in Kotsis v Kotsis ^[204] (1970) 122 CLR 69 at 91. were intended by his Honour to embrace the performance of delegated judicial duties, however few or seemingly unimportant they might appear to be. However, The Commonwealth v Hospital Contribution Fund , ^[205] (1982) 150 CLR 49. and Harris ^[206] (1991) 172 CLR 84. have now settled that some federal judicial power may be exercised by persons other than judges, and it is upon that basis that I am bound to proceed.

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187. Before stating what I consider to be the appropriate tests I should point to some significant differences between the relevant features of this case and the criteria to which Kitto J referred in the Tasmanian Breweries case. This scheme does create new rights and obligations. Its effect is to interpose a Commonwealth agency as the collector and payer of child support. Obligations of a somewhat different kind from any owed under the Family Law Act 1975 (Cth) do come to be owed to that agency, and a child carer may look to it for payment.

188. It is common ground that it is not always possible to define a power or function as being exclusively administrative or judicial. Powers may overlap, ^[207] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373 per Kitto J, quoting Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd [ 1949] AC 134 at 148 . and some functions or powers may be conferred on either a court or an administrative body. It has also been said (in the context of a consideration of the power of a Registrar of Trademarks) that some functions ``may, chameleon like, take their colour from their legislative surroundings or their recipient''. ^[208] R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 18 per Aickin J. And as both Harris ^[209] (1991) 172 CLR 84. and Brandy v Human Rights and Equal Opportunity Commission ^[210] (1995) 183 CLR 245. decide, the availability and nature of a review by a court are relevant considerations.

189. I would prefer to state a test by reference to several questions, not all of which will be of equal importance in every case. First, is the exercise to be undertaken under the relevant scheme, one which calls for independence and tenure of a kind traditionally enjoyed by judges? Secondly, does the scheme require the making of findings on disputed facts, or as to the law to be applied? Thirdly, is the relevant decision made by reference to a formula or a fairly standard set of criteria? Fourthly, is the decision appealable? Fifthly, if it is, what is the nature of the appeal? Sixthly, is the decision likely, as a legal or as a practical matter to serve as a precedent for decisions in future similar instances? Seventhly, has the legislature expressed a view about the nature of the process involved? Eighthly, is the process to be followed of a kind that has traditionally been undertaken by courts? Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones? Tenthly, is the decision enforceable by the maker of it or by the institution of which he or she is a member? And, last, is there any other feature of the process which is historically of an administrative or a non-judicial kind?

190. I deal now with each of those questions.

191. Naturally the officers administering the scheme should act fairly. However, they are not called upon to adjudicate between the State and citizen, or between substantial vested, personal, or corporate interests. They are unlikely to be placed in a position of susceptibility to one side or the other. They do not need to be selected from a group of experienced legally qualified people in order to perform their duties under the scheme. There is therefore no reason why the administrator of the scheme need enjoy judicial tenure and the independence that it should ensure, in order to administer the scheme.

192. The area of factual dispute is likely to be small. No serious questions, indeed in all probability, no questions of law at all, are likely to be required to be determined by the Registrar or those serving under him or her.

193. The decisions are likely to be made largely on a formulaic basis (see ss 36 and 75 of the Assessment Act). They would not normally call for the application of any analytical legal skills.

194. The relevant decisions are appealable and effectively by way of a hearing de novo, even though the Acts refer to a review.

195. The decisions are, as I have said, based on formulae: they would have no precedental value.

196. The legislature has stated that the Collection Act (s 123) is not a taxation law, but otherwise the Acts are silent as to their intended constitutional status. This consideration may have relevance in a truly borderline case but will rarely be of significance.

197. Courts have traditionally made decisions about the amount of maintenance to be paid for the support of a child. The orders made have descended to the detail of intervals between, amounts and places of payment. They have not however been made, as here, for the purpose of substituting a governmental collection and disbursement agency.

198. In modern times, and under the Family Law Act 1975 (Cth) parents are bound to support their children. This scheme, although it may proceed upon the basis of the existence of such a pre-existing obligation, does in fact create new rights and obligations to which I will

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refer in more detail, as this consideration is one of special significance in this case.

199. The scheme does make provision for a system of enforcement. But that system is different from the system of enforcement by a court's own officials, bailiffs and sheriffs, acting under specific court orders authorizing various curial processes, of, for example, forfeiture, seizure, arrest, execution and sale.

200. And, last, there is nothing about the nature of the scheme, except for one matter, which gives it the stamp of either a judicial or an administrative character. That matter which is of an administrative, rather than a judicial kind, is the right, albeit of a limited nature, of a Registrar to act on his or her own initiative, something not generally compatible with the exercise of true judicial power.

201. The answers to the questions by which the matter should be tested, do, on balance, well favour the conclusion that the scheme does not involve an exercise of judicial power. Three matters taken together are, in my opinion however, especially important and ultimately decisive here. The first is the availability of resort to a court of competent jurisdiction to challenge the relevant decisions of the Registrar. That the challenge is by way of appeal, and an appeal allowing a hearing de novo, and not simply by way of review under, for example the Administrative Decisions (Judicial Review) Act 1977 (Cth) is very relevant. Although a liable parent may have a pre-existing obligation to pay maintenance, the Acts do create new statutory rights and obligations: for the payee, a right of recourse to the Commonwealth as his or her agent to obtain and ensure payment; against the payer, an obligation to submit to a liability imposed upon him or her, to make payment or suffer deductions from money due, in favour of a Commonwealth agency. And thirdly, the exercise undertaken here is of a largely formulaic kind, not requiring judicial tenure and independence, or any substantial degree of legal expertise or analytical legal skills.

202. It follows that Ch III of the Constitution is not infringed by the statutory scheme, and the enactments are valid.

Answers to questions stated

203. The questions should therefore be answered as follows:

• 1. Is the scheme established by the Collection Act and the Assessment Act for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant a tax?
• No.
• 2. If ``yes'' to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?
• Unnecessary to answer.
• 3. Do the Acts in purporting to authorise the second defendant to make the assessments and the determinations, to enter the particulars, to issue the notices, and to collect and apply payments in the way in which the second defendant did, involve the purported exercise of judicial power by the second defendant contrary to Ch III of the Constitution?
• No.
• 4. What orders for the further disposition of the action should be made in the light of the answers to these questions?

The action should be dismissed. The plaintiff should pay the first defendant's costs.