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2010 -2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Child Support (Registration and Collection) Amendment Bill 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Honourable Tanya Plibersek MP, Minister for
Human Services)
CHILD SUPPORT (REGISTRATION AND COLLECTION) AMENDMENT BILL 2011
OUTLINE
The Child Support (Registration and Collection) Amendment Bill 2011 (the
Bill) purposes are to:
. Broaden the powers of the Child Support Registrar to delegate powers
to perform his or her duties under the Child Support (Registration and
Collection) Act 1988 to persons outside the Department to enable more
efficient service delivery; and
. To amend a number of criminal penalty provisions to ensure that the
offences contained therein can be successfully prosecuted, protecting
the integrity of the Child Support Scheme.
The Bill amends the Child Support (Registration and Collection) Act 1988.
Financial Impact Statement
The cost of implementing the changes will be negligible. Depending on the
success of outsourced collection activities, there may be potential savings
to the child support program operating costs.
CHILD SUPPORT (REGISTRATION AND COLLECTION) AMENDMENT BILL 2011
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short Title
1. Once enacted, the short title of the Bill will be the Child Support
(Registration and Collection) Amendment Act 2011.
Clause 2 - Commencement
2. The provisions of this Bill will commence on the day after Royal Assent.
3. As the offences inserted in this Bill by Items 5, 9, 11 and 13 in the
Schedule are existing offences, the commencement date is the day after
Royal Assent rather than a later commencement which would be usual for
new offences. The offences are being redrafted to clarify the operation
of the offences.
Clause 3 - Schedules
4. This clause provides that an Act that is specified in a Schedule that is
amended or repealed as set out in that Schedule, and any other item in a
Schedule operates according to its terms.
Schedule 1 - Amendments
Item 1 - Delegations power
5. This provision is added to enable the Registrar to delegate his or her
powers, as necessary, to persons engaged by the Commonwealth (however
described) to enable the outsourcing of powers and functions currently
performed exclusively by the Registrar and the Department. This will
allow the Registrar to engage specialist services, such as debt
collection services, which may be more effectively performed by providers
from outside the Department and therefore will assist with the more
efficient administration of the child support scheme.
6. The text of the provision is based upon paragraph 234(7)(c) of the
Social Security (Administration) Act 1999 and subsection 303(1) of the
Paid Parental Leave Act 2010. As the Department of Human Services moves
towards an integrated service model, it is appropriate to align the scope
of the delegation powers to ensure consistency of service delivery
opportunities.
Item 2 - Remove existing penalty
7. This item will remove the existing penalty as the penalty is included in
the new provision inserted by Item 5.
Item 3 - Repeal nature of offence and defence provisions
8. This item will repeal subsection 46(1A) as the nature of the penalty is
included in the new provision inserted by Item 5.
9. This item also repeals subsection 46(3) as the content of this
subsection is now included as a defence to subsection 46(4A) in the new
subsection 46(4B) inserted by Item 5.
Item 4 - Protected earnings amount
10. This item includes the definition of 'protected earnings amount' in
subsection 46(4) as this is the first time the expression is used. The
definition of 'protected earnings amount' is currently contained in
subsection 46(3) which is repealed by Item 3.
Item 5 - Offence provision - section 46
11. This item articulates the offence against subsection 46(1), making it
clear that a failure to deduct as required by subsection 46(1) is an
offence. This amendment does not change the existing offence.
12. Proposed subsection 46(4A) is an offence of strict liability. The
existing subsection 46(1) is already an offence of strict liability. It
is therefore appropriate to maintain the strict liability of the offence
in the new subsection 46(1A).
13. The appropriateness of strict liability for the offence in section 46
was reconsidered in accordance with Report 6/2002 of the Scrutiny of
Bills Committee: Application of Absolute and Strict Liability Offences in
Commonwealth Legislation.
14. Strict liability remains appropriate as compliance by a person is not
an onerous or difficult obligation and is an action in the control of the
employer, and not subject to reliance on actions of third parties. The
intention of the provision is to require deduction of child support
amounts from employees pay to be paid to the Registrar as child support.
Failure to deduct may result in child support not being paid.
15. The offence relates to the outcome from non compliance, with the state
of mind of the employer not relevant to the offence.
16. Including a provable fault element would likely undermine the integrity
of the provision, as it would be difficult to prove fault in most
instances. Alternatively, the fault element would need to be drafted to
include all states of mind that could lead to non compliance, effectively
making the offence strict liability.
17. Subsection 46(4B) provides a defence to the offence in subsection
46(4A).
18. The appropriateness of including subsection 46(4B) as a defence was
considered in light of advice from the Attorney General's Department. A
defence provision is considered appropriate as the information required
to ascertain the defence can only be supplied by the employer.
Item 6 - Update reference
19. This item updates the reference in subsection 46(5) to refer to the new
subsection 46(4A) rather than subsection 46(1).
Item 7 - Update reference
20. This item updates the reference in subsection 46(8) to refer to
subsections (4) and (4B) as subsection (3) is repealed by Item 3 and
subsection (4B) is inserted by Item 5.
Item 8 - Remove existing penalties
21. This item will remove the existing penalties in subsection 47(1), (1A),
(2) and (3) as those penalties will be included in new provisions
inserted by Item 9.
Item 9 - Offence provisions - Section 47
22. This item repeals the current subsection 47(3A) which describes the
nature of the offence in subsections 47(1A), (2) and (3), and substitutes
new provisions that clarify the existing offences contained in
subsections 47(1), (1A), (2) and (3).
23. The new subsection 47(3A) clarifies that it is an offence if the
employer refuses or fails to comply with the requirement in subsection
47(1).
24. The new subsection 47(3B) clarifies that it is an offence if the
employer refuses or fails to comply with the requirements in subsections
47(1A) or (2).
25. The new subsection 47(3C) clarifies that it is an offence if the
employer refuses or fails to comply with the requirement in subsection
47(3).
26. The new subsection 47(3D) preserves the strict liability nature of the
existing offences in subsections 47(1A), (2) and (3).
27. The appropriateness of strict liability for the offences in subsections
47(1A), (2) and (3) was reconsidered in accordance with Report 6/2002 of
the Scrutiny of Bills Committee: Application of Absolute and Strict
Liability Offences in Commonwealth Legislation.
28. Strict liability remains appropriate as compliance by a person is not
an onerous or difficult obligation and is an action in the control of the
person, and not subject to reliance on actions of third parties. The
actions of subsections 47(1A), (2) and (3) are providing the relevant
paperwork following from compliance with section 46.
29. As with other strict liability offences in this Bill, it is the outcome
of failure of the employer to perform the requirements that is the
impugned conduct, not the reason for the employer failing to comply.
30. Including a provable fault element would likely undermine the integrity
of the provision, as it would be difficult to prove fault in most
instances. Alternatively, the fault element would need to be drafted to
include all states of mind that could lead to non compliance, effectively
making the offence strict liability.
Item 10 - Clarify the requirement
31. This item amends subsection 59(2) to make clear that the employer must
keep records in accordance with subsection 59(1). This clarification
will also allow the offence inserted by Item 11 to clearly apply where
the obligation is not met by the employer.
Item 11 - Offence provisions - Section 59
32. This item repeals the existing penalty provision and substitutes a new
penalty provision in subsection 59(3) that clarifies that the offence is
a refusal or failure to comply with subsection 59(1) or (2).
33. The new subsection 59(4) provides a defence to the offence in the new
subsection 59(3).
34. The new subsection 59(5) preserves the strict liability nature of the
existing offences in subsections 59(1) and (2).
35. The appropriateness of strict liability for the offences in section 59
was reconsidered in accordance with Report 6/2002 of the Scrutiny of
Bills Committee: Application of Absolute and Strict Liability Offences in
Commonwealth Legislation.
36. Strict liability remains appropriate as compliance by a person is not
an onerous or difficult obligation and is an action in the control of the
person, and not subject to reliance on actions of third parties. The
purpose of section 59 is to ensure an employer keeps records of their
compliance with Part IV. Failure to do so is an offence, however, it can
also result in the ability of an investigation to identify non compliance
offences against section 46 and 47.
37. As with other strict liability offences in this Bill, it is the outcome
of failure of the employer to perform the requirements that is the
impugned conduct, not the reason for the employer failing to comply.
38. Including a provable fault element would likely undermine the integrity
of the provision, as it would be difficult to prove fault in most
instances. Alternatively, the fault element would need to be drafted to
include all states of mind that could lead to non compliance, effectively
making the offence strict liability.
39. The appropriateness of including subsection 59(4) as a defence was
considered in light of advice from the Attorney General's Department. A
defence provision is considered appropriate as the information required
to ascertain the defence can only be supplied by the employer.
Item 12 - Remove existing penalty
40. This item will remove the existing penalty in subsection 72W(1) as that
penalty will be included in the new provision inserted by Item 13.
Item 13 - Offence provision - Section 72W
41. This item repeals the existing provision describing the nature of the
offence and substitutes a new provision that clarifies the existing
offence contained in subsection 72W(1).
42. The new subsection 72W(3) preserves the strict liability of the
existing offence in subsection 72W(1).
43. The appropriateness of strict liability for the offence in subsection
72W(2) was reconsidered in accordance with Report 6/2002 of the Scrutiny
of Bills Committee: Application of Absolute and Strict Liability Offences
in Commonwealth Legislation.
44. Strict liability remains appropriate as compliance by a person is not
an onerous or difficult obligation and is an action in the control of the
person, and not subject to reliance on actions of third parties. The
purpose of section 72W is to require a person to produce a Departure
Authorisation Certificate (DAC) that they sought and were granted by the
Registrar, to an authorised officer so that the person may leave the
country. This provision is linked to the prohibition on departure
provided under section 72F.
45. As with other strict liability offences in this Bill, it is the outcome
of failure of the person to produce the DAC that is the impugned conduct,
not the reason for the person not producing the document.
46. Including a provable fault element would likely undermine the integrity
of the provision, as it would be difficult to prove fault in most
instances. Alternatively, the fault element would need to be drafted to
include all states of mind that could lead to non compliance, effectively
making the offence strict liability.
Item 14 - Update reference and description of offences
47. This item amends paragraph 121(1)(a) to update the reference to the
offence provision in section 47. This item also moves the description of
the offences into this paragraph from where they appear later in the
subsection.
Item 15 - Remove unnecessary words
48. This item amends paragraph 121(1)(b) to simplify the section by
removing an unnecessary reference to the provisions already described by
paragraph 121(1)(a) and replacing with a simpler reference to the earlier
paragraph.
Item 16 - Remove unnecessary words
49. This item removes words made unnecessary by the amendment made by Item
14.