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Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007

Schedule 4 Miscellaneous amendments

Part 1 Amendments commencing the day after Royal Assent

Child Support (Assessment) Act 1989

1  Subsection 150(1) (definition of law enforcement officer )

Repeal the definition.

2  Subsection 150(1) (definition of person to whom this section applies )

Repeal the definition, substitute:

person to whom this section applies means a person who is or has been:

                     (a)  the Minister; or

                     (b)  appointed or employed by, or a provider of services for, the Commonwealth; or

                     (c)  a person to whom protected information is communicated under subsection (3), (4) or (4G); or

                     (d)  a person to whom protected information is communicated by:

                              (i)  a person to whom the information was communicated under subsection (3) or (4); or

                             (ii)  a person mentioned in this paragraph; or

                     (e)  a person to whom this section applied immediately before the commencement of Schedule 5 to the Child Support Legislation Amendment Act 2001 .

3  Subsection 150(1) (definition of protected document )

Repeal the definition, substitute:

protected document means:

                     (a)  a document that:

                              (i)  contains information that concerns a person; and

                             (ii)  is obtained or made by another person in the course of, or because of, the other person’s duties under or in relation to this Act; or

                     (b)  a document to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

4  Subsection 150(1) (definition of protected information )

Repeal the definition, substitute:

protected information means:

                     (a)  information that:

                              (i)  concerns a person; and

                             (ii)  is disclosed to or obtained by another person in the course of, or because of, the other person’s duties under or in relation to this Act; or

                     (b)  information to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

5  Subsection 150(1)

Insert:

relevant Minister means:

                     (a)  a Minister who administers this Act; or

                     (b)  the Prime Minister.

6  Subsection 150(2)

Omit “subsection (3)”, substitute “this section”.

7  At the end of subsection 150(2A)

Add:

               ; or (c)  for the purpose for which the information was communicated under this section.

8  Paragraph 150(3)(e)

Repeal the paragraph, substitute:

                     (e)  to any person, if the information concerns a credible threat to the life, health or welfare of a person and either of the following applies:

                              (i)  the Registrar, or the person authorised by the Registrar, believes on reasonable grounds that the communication is necessary to prevent or lessen the threat;

                             (ii)  there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the information is communicated for the purpose of preventing, investigating or prosecuting such an offence; or

                      (f)  to a person who is authorised to obtain the information by the person to whom the information relates.

9  Subsection 150(4)

Repeal the subsection, substitute:

             (4)  Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:

                     (a)  the information cannot reasonably be obtained from a source other than the Department; and

                     (b)  the person to whom the information will be communicated has sufficient interest, within the meaning of subsection (4A), in the information; and

                     (c)  the Registrar, or the person authorised by the Registrar, is satisfied that the communication is for the purpose of subsection (4B), (4C), (4D), (4E) or (4F).

          (4A)  A person has sufficient interest in protected information if:

                     (a)  the Registrar, or the person authorised by the Registrar, is satisfied that, in relation to the purpose of the communication, the person has a genuine and legitimate interest in the information; or

                     (b)  the person is a relevant Minister.

          (4B)  A communication of protected information is for the purpose of this subsection if:

                     (a)  the communication is necessary to correct a mistake of fact in relation to the administration of this Act; and

                     (b)  the integrity of that administration will be at risk if the mistake of fact is not corrected.

          (4C)  A communication of protected information is for the purpose of this subsection if the communication is necessary:

                     (a)  to brief a relevant Minister so that the Minister can consider or respond to complaints or issues raised with the Minister by or on behalf of a person (in writing or orally); or

                     (b)  to brief a relevant Minister for a meeting or forum that the Minister is to attend; or

                     (c)  to brief a relevant Minister in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the information relates so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, a misleading statement or an incorrectly held opinion; or

                     (d)  to brief a relevant Minister about a possible error or delay on the part of the Child Support Agency; or

                     (e)  to brief a relevant Minister about an instance of an anomalous or unusual operation of this Act.

          (4D)  A communication of protected information is for the purpose of this subsection if:

                     (a)  the information is about a missing person; and

                     (b)  the communication is necessary:

                              (i)  to assist a court, coronial enquiry, Royal Commission, department or authority, of the Commonwealth, a State or a Territory, in relation to the whereabouts of the missing person; or

                             (ii)  to locate a person (including the missing person); and

                     (c)  there is no reasonable ground to believe that the missing person would not want the information communicated.

          (4E)  A communication of protected information is for the purpose of this subsection if:

                     (a)  the information is about a deceased person; and

                     (b)  the communication:

                              (i)  is necessary to assist a court, coronial enquiry, Royal Commission, department or authority, of the Commonwealth, a State or a Territory, in relation to the death of the person; or

                             (ii)  is necessary to help a person locate a relative or beneficiary of the deceased person; or

                            (iii)  is in relation to the administration of the estate of the deceased person; and

                     (c)  there is no reasonable ground to believe that the deceased person would not have wanted the information communicated.

           (4F)  A communication of protected information is for the purpose of this subsection if the information is to establish:

                     (a)  the death of a person; or

                     (b)  the place where the death of a person is registered.

          (4G)  Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:

                     (a)  the person to whom the information will be communicated is a payee of a registered maintenance liability who has notified the Registrar, in accordance with section 113A of the Registration and Collection Act, of the payee’s intention to institute a proceeding in accordance with that section; and

                     (b)  the information is communicated for the purpose of the proceeding.

10  After section 150

Insert:

150AA   Offence of unauthorised use of information

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  makes a record of information; or

                             (ii)  communicates information to a person; or

                            (iii)  otherwise makes use of information; and

                     (b)  at the time the person does so, the person is not a person to whom this section applies (within the meaning of subsection 150(1)); and

                     (c)  the information is relevant information.

Penalty:  Imprisonment for 1 year.

             (2)  If:

                     (a)  the relevant information was communicated to a person under subsection 150(4G); and

                     (b)  that person makes a record of, or communicates, the information for the purpose of a proceeding under section 113A of the Registration and Collection Act;

subsection (1) of this section does not apply to any further recording, communication or use of that information by a person who is not a person to whom this section applies.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

             (3)  In this section:

relevant information means:

                     (a)  information about a person obtained from the records of the Department or the Child Support Agency; or

                     (b)  information to the effect that there is no information about a person held in the records of the Department or the Child Support Agency.

Child Support (Registration and Collection) Act 1988

11  Subsection 16(1) (definition of law enforcement officer )

Repeal the definition.

12  Subsection 16(1) (definition of person to whom this section applies )

Repeal the definition, substitute:

person to whom this section applies means a person who is or has been:

                     (a)  the Minister; or

                     (b)  appointed or employed by, or a provider of services for, the Commonwealth; or

                     (c)  a person to whom protected information has been communicated under subsection (3), (4) or (4G); or

                     (d)  a person to whom protected information is communicated by:

                              (i)  a person to whom the information was communicated under subsection (3) or (4); or

                             (ii)  a person mentioned in this paragraph; or

                     (e)  a person to whom this section applied immediately before the commencement of Schedule 5 to the Child Support Legislation Amendment Act 2001 .

13  Subsection 16(1) (definition of protected document )

Repeal the definition, substitute:

protected document means:

                     (a)  a document that:

                              (i)  contains information that concerns a person; and

                             (ii)  is obtained or made by another person in the course of, or because of, the other person’s duties under or in relation to this Act; or

                     (b)  a document to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

14  Subsection 16(1) (definition of protected information )

Repeal the definition, substitute:

protected information means:

                     (a)  information that:

                              (i)  concerns a person; and

                             (ii)  is disclosed to or obtained by another person in the course of, or because of, the other person’s duties under or in relation to this Act; or

                     (b)  information to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

15  Subsection 16(1)

Insert:

relevant Minister means:

                     (a)  a Minister who administers this Act; or

                     (b)  the Prime Minister.

16  Subsection 16(2)

Omit “subsection (3)”, substitute “this section”.

17  At the end of subsection 16(2A)

Add:

               ; or (c)  for the purpose for which the information was communicated under this section.

18  Paragraph 16(3)(e)

Repeal the paragraph, substitute:

                     (e)  to any person, if the information concerns a credible threat to the life, health or welfare of a person and either of the following applies:

                              (i)  the Registrar, or the person authorised by the Registrar, believes on reasonable grounds that the communication is necessary to prevent or lessen the threat;

                             (ii)  there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the information is communicated for the purpose of preventing, investigating or prosecuting such an offence; or

                      (f)  to a person who is authorised to obtain the information by the person to whom the information relates.

19  Subsection 16(4)

Repeal the subsection, substitute:

             (4)  Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:

                     (a)  the information cannot reasonably be obtained from a source other than the Department; and

                     (b)  the person to whom the information will be communicated has sufficient interest, within the meaning of subsection (4A), in the information; and

                     (c)  the Registrar, or a person authorised by the Registrar, is satisfied that the communication is for the purpose of subsection (4B), (4C), (4D), (4E) or (4F).

          (4A)  A person has sufficient interest in protected information if:

                     (a)  the Registrar, or the person authorised by the Registrar, is satisfied that, in relation to the purpose of the communication, the person has a genuine and legitimate interest in the information; or

                     (b)  the person is a relevant Minister.

          (4B)  A communication of protected information is for the purpose of this subsection if:

                     (a)  the communication is necessary to correct a mistake of fact in relation to the administration of this Act; and

                     (b)  the integrity of that administration will be at risk if the mistake of fact is not corrected.

          (4C)  A communication of protected information is for the purpose of this subsection if the communication is necessary:

                     (a)  to brief a relevant Minister so that the Minister can consider or respond to complaints or issues raised with the Minister by or on behalf of a person (in writing or orally); or

                     (b)  to brief a relevant Minister for a meeting or forum that the Minister is to attend; or

                     (c)  to brief a relevant Minister in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the information relates so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, a misleading statement or an incorrectly held opinion; or

                     (d)  to brief a relevant Minister about a possible error or delay on the part of the Child Support Agency; or

                     (e)  to brief a relevant Minister about an instance of an anomalous or unusual operation of this Act.

          (4D)  A communication of protected information is for the purpose of this subsection if:

                     (a)  the information is about a missing person; and

                     (b)  the communication is necessary:

                              (i)  to assist a court, coronial enquiry, Royal Commission, department or authority, of the Commonwealth, a State or a Territory, in relation to the whereabouts of the missing person; or

                             (ii)  to locate a person (including the missing person); and

                     (c)  there is no reasonable ground to believe that the missing person would not want the information communicated.

          (4E)  A communication of protected information is for the purpose of this subsection if:

                     (a)  the information is about a deceased person; and

                     (b)  the communication:

                              (i)  is necessary to assist a court, coronial enquiry, Royal Commission, department or authority, of the Commonwealth, a State or a Territory, in relation to the death of the person; or

                             (ii)  is necessary to help a person locate a relative or beneficiary of the deceased person; or

                            (iii)  is in relation to the administration of the estate of the deceased person; and

                     (c)  there is no reasonable ground to believe that the deceased person would not have wanted the information communicated.

           (4F)  A communication of protected information is for the purpose of this subsection if the information is to establish:

                     (a)  the death of a person; or

                     (b)  the place where the death of a person is registered.

          (4G)  Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:

                     (a)  the person to whom the information will be communicated is a payee of a registered maintenance liability who has notified the Registrar, in accordance with section 113A, of the payee’s intention to institute a proceeding in accordance with that section; and

                     (b)  the information is communicated for the purpose of the proceeding.

20  After section 16

Insert:

16AA   Offence of unauthorised use of information

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  makes a record of information; or

                             (ii)  communicates information to a person; or

                            (iii)  otherwise makes use of information; and

                     (b)  at the time the person does so, the person is not a person to whom this section applies (within the meaning of subsection 16(1)); and

                     (c)  the information is relevant information.

Penalty:  Imprisonment for 1 year.

             (2)  If:

                     (a)  the relevant information was communicated to a person under subsection 16(4G); and

                     (b)  that person makes a record of, or communicates, the information for the purpose of a proceeding under section 113A;

subsection (1) of this section does not apply to any further recording, communication or use of that information by a person who is not a person to whom this section applies.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

             (3)  In this section:

relevant information means:

                     (a)  information about a person obtained from the records of the Department or the Child Support Agency; or

                     (b)  information to the effect that there is no information about a person held in the records of the Department or the Child Support Agency.



 

Part 2 Amendments commencing on 1 January 2008

Child Support (Assessment) Act 1989

21  Subsection 38A(4)

After “in respect of rental property”, insert “(other than prescribed allowable deductions of that kind)”.

22  Paragraph 39(3)(d)

Repeal the paragraph, substitute:

                     (d)  if paragraph (c) does not apply and the Registrar was notified, or otherwise became aware, of the fact within 28 days after giving a notice under section 34 (giving notice of successful application)—on and from the day on which the application was made; or

23  Application

Item 22 of this Schedule applies to the working out of the exempted income amount of a liable parent in relation to the assessment of child support payable by the liable parent if the notice mentioned in paragraph 39(3)(d) of the Assessment Act:

                     (a)  was given not more than 28 days before; or

                     (b)  is given on or after;

the commencement of the item.

24  Subsection 45A(2)

Omit “liable parent”, substitute “entitled carer”.

25  Subsection 45A(4)

After “in respect of rental property”, insert “(other than prescribed allowable deductions of that kind)”.

26  Subsection 47(1)

Omit “in respect of whom an assessment has been made”, substitute “eligible for administrative assessment”.

27  Subsection 56(3)

Repeal the subsection, substitute:

             (3)  Subsection (2) does not apply in relation to a person if the amendment is made:

                     (a)  under subsection 170(1) (amendment of assessments) of the Income Tax Assessment Act 1936 to increase the person’s taxable income; or

                     (b)  under a provision of that Act or the Income Tax Assessment Act 1997 prescribed for the purposes of this subsection; or

                     (c)  in circumstances prescribed for the purposes of this subsection.

If such an amendment is made, the person’s taxable income under either the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 for the year of income is to be taken for this Act to be, and always to have been, the person’s taxable income for that year as last so assessed under either of those Acts.

28  Subsection 60(2)

Omit “any part of the period”, substitute “any part of the child support period remaining after the election would have been made (apart from this subsection)”.

29  Paragraph 76(2)(b)

After “the children” (first occurring), insert “in the care of the carer entitled to child support who are”.

30  Paragraph 76(2)(f)

Repeal the paragraph, substitute:

                      (f)  if Subdivision E of Division 2 (Children shared or divided between parents) applies in relation to the parents of the child concerned and the carer entitled to child support has one or more relevant dependent children when treated as a liable parent for the purposes of that Subdivision—the number of relevant dependent children of that parent when so treated in each of the age groups specified in subsection (2A);

31  Subparagraphs 76(2)(g)(i), (ii) and (iii)

Repeal the subparagraphs, substitute:

                              (i)  the annual rate of child support that would, apart from section 52, be payable by the other liable parent concerned; and

                             (ii)  the other liable parent’s child support income amount; and

                            (iii)  the number of relevant dependent children of the other liable parent in each of the age groups specified in subsection (2A);

32  Paragraph 76(2)(h)

Omit “the names and dates of birth of all the children”, substitute “the number of children”.

33  Application

Item 32 of this Schedule applies to all notices under section 76 of the Assessment Act given on or after the commencement of the item.

34  After subsection 76(2A)

Insert:

          (2B)  Despite subsection (2), if an administrative assessment is affected either:

                     (a)  by an order made by a court under Division 4 of Part 7; or

                     (b)  by the provisions of a child support agreement;

the Registrar is not required to specify any matter referred to in that subsection that is not relevant to the making of the assessment.

35  Subsection 98M(3)

Omit “application”, substitute “summary”.

36  Section 98V

After “as if”, insert “no”.

37  Subsections 143(1), (2) and (3)

Repeal the subsections, substitute:

             (1)  If:

                     (a)  an amount of child support is paid by a person (the payer ) to another person (the payee ); and

                     (b)  the payer is not liable, or subsequently becomes not liable, to pay the amount to the payee;

the amount may be recovered from the payee in a court having jurisdiction under this Act.

             (2)  If:

                     (a)  an amount is paid by a person (the payer ) to another person (the payee ) for a child in relation to a period under an order made under section 139 (urgent maintenance orders); and

                     (b)  child support does not become payable by the payer to the payee for the child in relation to the period;

the amount may be recovered from the payee in a court having jurisdiction under this Act.

             (3)  In proceedings in a court under this section, the court may make such orders in relation to the payee as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned.

38  Subsection 143(4)

Omit “the person to whom, apart from that section, the amount would have been payable”, substitute “the payee”.

Child Support (Registration and Collection) Act 1988

39  Subsection 4(1)

Insert:

child support agreement has the same meaning as in the Assessment Act.

40  Subsection 67(3) (definition of relevant annual rate )

Repeal the definition, substitute:

relevant annual rate means the rate that is from time to time the general interest charge rate under subsection 8AAD(1) of the Taxation Administration Act 1953 .

41  Paragraphs 72(1)(b) and (c)

Omit “child support”.

42  Paragraphs 72(2)(a), (b) and (c)

Omit “child support”.

Note:       The heading to section 72 is altered by omitting “ child support debts ” and substituting “ debts under this Act ”.

43  Paragraphs 72A(1)(e), (f) and (g)

Repeal the paragraphs, substitute:

                     (e)  if the amount of money is more than the maximum notified deduction total—an amount equal to the maximum notified deduction total; or

                      (f)  if the amount of money is equal to or less than the maximum notified deduction total—the amount of money; or

                     (g)  if the notice specifies an amount of money that is to be paid out of each payment that the notified person becomes liable, from time to time, to make to the debtor—that amount until the maximum notified deduction total is satisfied.

44  After subsection 72A(1A)

Insert:

          (1B)  For the purposes of subsection (1), maximum notified deduction total is an amount specified in a notice under that subsection that does not exceed the support debt of the child support debtor to whom the notice relates.

45  Subsection 111(2)

Repeal the subsection, substitute:

             (2)  If the payer or payee of an enforceable maintenance liability changes his or her name or address, the payer or payee must, within 14 days after that change of name or address, notify the Registrar of the change in the manner specified by the Registrar.

Note:       The heading to section 111 is altered by omitting “ payers ” and substituting “ payers and payees ”.

46  Application

The amendment made by item 45 of this Schedule applies to any person who changes his or her name or address after the commencement of that item.



 

Part 3 Amendments commencing on 1 July 2008

Child Support (Assessment) Act 1989

47  Subsection 5(1) (paragraphs (a) and (b) of the definition of net rental property loss )

After “the expenses”, insert “(other than prescribed expenses)”.

48  Subsection 60(2)

Omit “any part of the period”, substitute “any part of the child support period remaining after the election would have been made (apart from this subsection)”.

49  Paragraph 73A(1)(d)

Repeal the paragraph, substitute:

                     (d)  if paragraph (c) does not apply and the Registrar was notified, or otherwise became aware, of the fact within 28 days after giving a notice under section 34 (giving notice of successful application)—on and from the day on which the application was made; or

50  Paragraph 76(2)(c)

Omit “the age ranges of any relevant dependent children”, substitute “the number and age ranges of the relevant dependent children (if any)”.

51  Paragraph 76(2)(d)

Omit “the age ranges of any other children in other child support cases”, substitute “the number and age ranges of the other children in other child support cases (if any)”.

52  After subsection 76(2)

Insert:

          (2A)  Despite subsection (2), if an administrative assessment is affected either:

                     (a)  by an order made by a court under Division 4 of Part 7; or

                     (b)  by the provisions of a child support agreement;

the Registrar is not required to specify any matter referred to in that subsection that is not relevant to the making of the assessment.

53  Subsection 146B(4)

After “76(2)”, insert “(disregarding subsection 76(2A))”.