Luton v Lessels

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ

ANTHONY IAN LUTON  PLAINTIFF

AND

GILLIAN GLADYS LESSELS & ANOR  DEFENDANTS

Luton v Lessels
[2002] HCA 13
11 April 2002
C40/1995

ORDER

Answer questions as follows:

Question 1

Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant a tax?

Answer

No.

Question 2

If "Yes" to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?

Answer

Unnecessary to answer.

Question 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?

Answer

No.

Question 4

What orders for the further disposition of the action should be made in the light of the answers to these questions?

Answer

The action should be dismissed with costs, including the costs of the case stated under s 18 of the Judiciary Act 1903 (Cth).

Representation:

G C Corr with G K Y Wong for the plaintiff (instructed by Tjakamarra-Forrest)

No appearance for the first defendant

D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan for the second defendant (instructed by Australian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia with A S Field intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Luton v Lessels

Constitutional law (Cth) – Taxation – Law imposing taxation – Statutory power to register a parent's or step-parent's child maintenance liability – Validity – Whether amounting to law imposing taxation – Whether law deals only with the imposition of taxation.

Constitutional law (Cth) – Judicial power of Commonwealth – Child Support Registrar may assess child support payable by parent or step-parent under statute – Validity – Whether impermissible conferral of the judicial power of the Commonwealth upon Registrar.

Words and phrases – "laws imposing taxation".

Constitution, ss 53, 55, 71.
Child Support (Assessment) Act 1989 (Cth), Pts 5, 6A.
Child Support (Registration and Collection) Act 1988 (Cth), Pt III.

1. GLEESON CJ.   The plaintiff has commenced proceedings in this Court challenging the validity of the Commonwealth's legislative scheme for assessment and enforcement of child support liabilities.  The scheme is contained in the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") and the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration and Collection Act"). The first ground of challenge is that the scheme involves the imposition of taxation, and that there has been a contravention of s 55 of the Constitution. The second ground is that aspects of the legislation involve an attempt to vest the judicial power of the Commonwealth in the Child Support Registrar.

2. A case has been stated pursuant to s 18 of the Judiciary Act 1903 (Cth) raising certain questions for the decision of a Full Court. The specific questions, and my answers to them, will appear at the conclusion of these reasons.

3. The details of the legislation are set out in the reasons for judgment of Gaudron and Hayne JJ.  I will refer to them only to the extent necessary to explain my reasons.

   The legislative scheme

4. The objects of the Assessment Act are set out in s 4. The principal object is to ensure that children receive a proper level of financial support from their parents. To that end, the Act provides for a level of support to be determined in accordance with legislatively fixed standards, and permits carers of children to have the level readily determined without the need to resort to court proceedings.

5. There is an office of Child Support Registrar established by s 10 of the Registration and Collection Act. An application for administrative assessment of child support may be made, to the Registrar, under Pt 4 of the Assessment Act. Such an assessment is made in accordance with a statutory formula, unless the Registrar determines, or a court orders, that the provisions relating to administrative assessment of child support should be departed from (Assessment Act s 35). A parent's liability to pay child support arises on the acceptance by the Registrar of an application (s 31). The making of an assessment gives rise to a debt owing by the liable parent to the carer who is entitled to child support; the debt may be recovered in a court of competent jurisdiction (s 79).

6. It may be observed that, although the legislation is enacted in furtherance of a clearly defined public policy, it creates a distinctly personal liability. The natural and moral obligation of a parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt, calculated in accordance with the Assessment Act, owing by a parent to a carer of the child. Although it is not directly relevant to the questions raised, the legislation was enacted following a referral of matters by a number of States, and is supported by the powers conferred by s 51 (xxii), (xxxvii) and (xxxix) and s 122 of the Constitution.

7. The principal objects of the Registration and 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 parents towards the maintenance of their children are paid on a regular and timely basis (s 3). Those objects are achieved by a system of registration and enforcement. The scheme is available to a carer who wishes to take advantage of it. Some carers may not. They can rely on private enforcement if they wish. If a liability has arisen under a child support assessment, it may be registered under the Registration and Collection Act (s 17). The effect of registration is that the carer is no longer entitled to enforce payment of the liability and, instead, there is a debt owing by the liable parent to the Commonwealth (s 30). The carer entitled to child support becomes entitled to payment of an amount equivalent to that collected by the Commonwealth from the liable parent or on account of that parent's liability (s 76). The debt owed by the liable parent to the Commonwealth must be paid in the manner prescribed by the Act, and may be collected from certain debtors of the parent. Amounts collected are paid into, and disbursed to carers out of, the Consolidated Revenue Fund. The Commonwealth does not benefit financially.

   Taxation

8. The question of what constitutes a tax, or the imposition of taxation, for the purposes of the Constitution may arise in a number of contexts. Under s 51(ii), the Parliament has power to make laws with respect to taxation. The broader the meaning given to taxation, the greater the reach of that power. Section 90 provides that the power of the Parliament to impose duties of excise is exclusive, depriving the States of that form of revenue. Whether a particular exaction is to be characterised as a tax on goods may determine whether it is a duty of excise. Sections 53 to 55 deal with matters concerning the relations between the two Houses of Parliament, and reflect one of the compromises by which Federation was achieved[1]. Section 53 provides that proposed laws imposing taxation shall not originate in the Senate, and the Senate may not amend proposed laws imposing taxation. If it were possible to "tack" on to a law imposing taxation another law, which the Senate might wish to amend, then the power of the Senate would be diminished. To guard against that, s 55 provides that 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.

   [1]See Quick & Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 675.

9. The plaintiff argues that the Assessment Act and the Registration and Collection Act include laws imposing taxation. If they contravene s 55, the result is that any provisions in the Acts dealing with any matter other than the imposition of taxation are of no effect. That would give rise to a question whether there are any such provisions, or whether the entire Acts deal with the imposition of taxation[2].  However, the primary submission of the second defendant, (the first defendant does not appear), and the interveners, is that no such question arises, for the reason that neither Act is, or contains, a law with respect to, or imposing, taxation.  For the reasons that follow, I agree with that submission.

   [2]cf Re Dymond (1959) 101 CLR 11.

10. To decide whether an exaction of money or the imposition of some other financial obligation is a tax involves an exercise in characterisation.  The often-quoted words of Latham CJ in Matthews v Chicory Marketing Board (Vict)[3] were not offered as a definition of a tax.  They were an explanation of the features of the impost under consideration that justified the conclusion that it bore the character of a tax.  Latham CJ said[4]:

    "The levy is, in my opinion, plainly a tax.  It is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered."

    He then cited a decision of the Privy Council, Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Ltd[5].  The factors mentioned, that is, the compulsory exaction, by a public authority, for public purposes, and legal enforceability, had been listed by the Privy Council as reasons for concluding that the adjustment levies in question should be characterised as taxes[6].  They were not put forward by the Privy Council as a definitive statement of the essence of a tax.  And Latham CJ's statement that the levy with which he was concerned was not a payment for services rendered was directed to the facts of that case; it was not exhaustive.  Payments for services rendered are not the only exactions that stand outside the concept of a tax.  Others include "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"[7].

    [3](1938) 60 CLR 263.

    [4](1938) 60 CLR 263 at 276.

    [5][1933] AC 168.

    [6][1933] AC 168 at 175-178.

    [7]Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 467.

11. In Parton v Milk Board (Vict)[8], Dixon J said of the contribution in question that it "is a compulsory levy by a public authority for public purposes and that is enough to show that it is a tax".  The substantial question in that case was whether the tax was a tax on goods, and a duty of excise.

    [8](1949) 80 CLR 229 at 259.

12. What constitutes a sufficient public purpose may be a matter of contention, as in Australian Tape Manufacturers Association Ltd v The Commonwealth[9].  Quick and Garran, writing in 1901, said[10]:

    "Taxation may be now defined as any exaction of money or revenue, by the authority of a State, from its subjects or citizens and others within its jurisdiction, for the purpose of defraying the cost of government, promoting the common welfare, and defending it against aggression from without."

    That, perhaps, illustrates the risks of definition.  Depending upon what is meant by "promoting the common welfare", it may be difficult to reconcile with the decision in the Australian Tape Manufacturers Association case.  Directly or indirectly, all legislation is aimed at promoting the common welfare.  The legislative powers of the Parliament are to be exercised for the peace, order and good government of the Commonwealth. A law which imposes on one person an obligation to pay money to another, or to the government, will, by hypothesis, be enacted in pursuance of some policy or purpose which is regarded by the Parliament as in the public interest.  The concept of "public purposes" in the present context is narrower than that. 

    [9](1993) 176 CLR 480.

    [10]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 550.

13. As was pointed out in Airservices Australia v Canadian Airlines[11], while an objective of raising revenue for the government is not a universal determinant, the presence or absence of such an objective will often be significant in deciding whether an exaction, or the imposition of a liability, bears the character of taxation.  That is the most usual form of public purpose involved; an idea reflected in what was said by Quick and Garran.  Revenue raised by a government may be earmarked, formally or informally, for a specific purpose, and still be a tax.  For example, Commonwealth pay-roll tax was introduced in 1941 as a means of providing revenue to finance the provision of child endowment under legislation enacted in the same year[12].  The impost in the Australian Tape Manufacturers Association case involved raising revenue from one group for the purpose of its application for the benefit of another group. The majority held that revenue was raised for a public purpose of compensating the second group. The group who were to be compensated had no prior legal right against the group from whom the revenue was to be raised. That is a point of distinction from the Registration and Collection Act. The fact that the proceeds of the exaction were not paid into, and out of, the Consolidated Revenue Fund was not regarded as decisive. I would also regard the converse as true.

    [11](1999) 202 CLR 133 at 178 [90] per Gleeson CJ and Kirby J.

    [12]Victoria v The Commonwealth (1971) 122 CLR 353 at 362 per Barwick CJ.

14. The Assessment Act creates a private or personal obligation, in the form of a debt payable by the liable parent to the eligible carer. The debt is recoverable by the carer. The creation of a legal obligation, enforceable by private action, in a parent, to pay for the support of a child, is not taxation. It is a scheme for the creation and adjustment of private rights and liabilities. But the existence of the obligation is of significance in considering the aspect of the legislative scheme upon which the plaintiff principally relies, which is in the Registration and Collection Act. What is alleged to be taxation is in substance no more than a mechanism for the enforcement of a pre-existing private liability.

15. If a child support assessment is registered under the Registration and Collection Act the debt payable by the liable parent to the eligible carer is extinguished, and replaced by a debt payable by the liable parent to the Commonwealth. The Commonwealth, as necessary, collects the amount owing, and pays it into the Consolidated Revenue Fund. An amount equal to the amount collected is transferred to the Child Support Account. Payments of child support are then made to the carer from the Child Support Account. What is involved is a collection mechanism to facilitate the recovery of child support payments that a parent becomes liable to make under the Assessment Act. It enables the discharge of a personal obligation created by the Assessment Act. A multiplicity of payments may be involved, the amounts of payments are likely to be modest, and many carers would lack the means or the will to undertake private recovery proceedings. The practical advantages of such a scheme are obvious, but they do not include any financial benefit to the Commonwealth.

16. The payment of moneys collected by the Commonwealth into the Consolidated Revenue Fund, is necessitated by s 81 of the Constitution, which refers to "revenues or moneys". The legislation does not have either the purpose or the effect of raising revenue for the Commonwealth. Its purpose is to create, and facilitate the enforcement of, private rights and liabilities. The Assessment Act creates a personal liability in a parent to the carer of a child; the Registration and Collection Act gives the carer the facility, in exchange for extinguishment of the liability to the carer, to have the Commonwealth recover the child support payments assessed and pay an equivalent amount to the carer.

17. The legislation does not bear the character of taxation.

    Judicial power

18. In order to deal with the argument that the legislation purports to confer judicial power upon the Child Support Registrar, it is necessary to make further reference to some of the provisions of the two Acts.

19. When an application is made to the Registrar under the Assessment Act for administrative assessment of child support, the Registrar must assess the annual rate of child support payable (s 31(2)). The annual rate is calculated in accordance with a formula based upon a "child support percentage" multiplied by an "adjusted income amount" of the liable parent (ss 36, 37). Following such assessment, a daily rate of child support becomes due and payable monthly.

20. Part 6A of the Assessment Act provides for departure applications, which invoke a power in the Registrar to make a determination that the provisions relating to administrative assessments of child support will be departed from in relation to a child. The grounds for such an application relate to special circumstances which may include the capacity of either parent to provide financial support for a child, the costs of maintaining a child, and a consideration of whether the application of the administrative assessment provisions, would be unjust and inequitable (s 117). A departure determination may vary the rate of child support payable, the child support percentage, or the child support income amount.

21. The fact that the Registrar makes assessments, or departure determinations, by the application of legal criteria to the facts and circumstances of a particular case does not mean that what is involved is an exercise of judicial power.  The making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of the judicial function.  It is also characteristic of many administrative functions.  An obvious, and topical, example is the way in which decisions are made under the Migration Act 1958 (Cth) when persons asserting refugee status make an application for a protection visa. The criteria by reference to which such applications are determined are contained in the Migration Act which, in turn, refers to the International Convention relating to the Status of Refugees.  Deciding whether a person is owed protection obligations can involve difficult questions of fact and law.  Such decisions are routinely made by officers of the executive government and, if necessary, reviewed by an administrative tribunal.  A large majority of applications never go past the stage of administrative decision-making.  Some decisions ultimately become subject to judicial review, but most claims to refugee status are decided without the involvement of any exercise of judicial power.  Another example, referred to by Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[13], is that of customs officials who decide whether some article is a prohibited import or, if a permissible import, whether it is dutiable and in what sum.

    [13](1970) 123 CLR 361 at 398.

22. The exercise by the Registrar of the powers referred to above does not involve the determination of pre-existing rights and obligations.  It involves the creation of new rights and obligations for the future.  The acceptance of an application, the making of an administrative assessment, and the making of a departure determination constitute the factum upon which the legislation operates to fix or alter the rights and obligations of parent and carer[14].

    [14]cf Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 111 [45].

23. Furthermore, the enforceability of such rights and obligations depends upon the intervention of a court and the independent exercise of judicial power[15].  The Registrar cannot enforce his or her own assessments or determinations.

    [15]cf Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 260-261; Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 110-111 [42]-[43].

24. In addition, neither an assessment nor a departure determination is conclusive.  In the case of an assessment, after an objection made to the Registrar has been decided, an application may be made to a court for a declaration that an applicant is or is not entitled to an administrative assessment, or to appeal against the assessment (ss 106, 106A, 107, 110).  In the case of a departure determination, following the disallowance of an objection either the liable parent or the carer may apply to a court (ss 115-118).  In both cases, the court exercises original jurisdiction, and the court has broad powers to override decisions of the Registrar[16].

    [16]cf Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 111-112 [46]-[47].

25. For those reasons, the Assessment Act does not purport to confer judicial power upon the Child Support Registrar.

26. As to the Registration and Collection Act, if a person to whom a liability in respect of child support is owed chooses to seek registration, the Registrar is required to register the liability, with the legal consequences earlier described. If a payer or payee is dissatisfied with the registration, or the particulars entered in the register, there is a right of objection, and a person aggrieved with the Registrar's decision on the objection may "appeal" to a court. The registration of a child support liability does not involve a binding and conclusive determination of existing rights and liabilities. It creates rights for the future. Under s 113 of the Act, debts due to the Commonwealth may be recovered in a court of competent jurisdiction at the suit of the Registrar.

27. The Registrar is involved in various ways in the collection and recovery mechanisms.  These mechanisms include garnishment of wages and salaries.  These functions do not involve the exercise by the Registrar of judicial power[17].

    [17]cf Re Registrar, Social Security Appeals Tribunal; Ex parte Townsend (1995) 69 ALJR 647 at 650 per Toohey J; 130 ALR 163 at 167.

28. This ground of challenge to the validity of the legislation fails.

    Conclusion

29. The questions should be answered as follows:

    1.Q.  Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant a tax?

    A.  No.

    2.Q. If "yes" to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?

    A.  Unnecessary to answer.

    3.Q.  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?

    A.  No.

    4.Q.  What orders for the further disposition of the action should be made in the light of the answers to these questions?

    A.  The action should be dismissed with costs.

30. GAUDRON AND HAYNE JJ.   The questions for consideration of the Full Court concern the validity of the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration and Collection Act") and the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act"). The plaintiff contends that the former of these Acts is a law imposing taxation which, contrary to s 55 of the Constitution, does not "deal only with the imposition of taxation". The plaintiff further contends that both Acts, impermissibly, purport to vest the judicial power of the Commonwealth in the Child Support Registrar ("the Registrar"), an office established by s 10 of the Registration and Collection Act. Both contentions should be rejected.

31. The questions reserved are couched in the present tense and, therefore, invite attention to the Acts in the form in which they now stand.  Since their enactment, both Acts have been amended several times but it was not submitted that anything turned on those amendments or on the particular form that the Acts took at the date of the various events described in the case stated.  It is, therefore, convenient to refer to the principal features of the Acts as they now stand.

    The Registration and Collection Act

32. The Registration and Collection Act (originally enacted as the Child Support Act 1988) commenced operation on 1 June 1988. Its principal objects[18] include ensuring:

    "(a)that children receive from their parents the financial support that the parents are liable to provide; and

    (b)that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis".

    [18]Registration and Collection Act, s 3(1).

33. Part III of the Registration and Collection Act (ss 17‑42B) provides for the registration of certain liabilities of a parent, or step‑parent, of a child to pay a periodic amount for the maintenance of the child. A person liable to make such payments is referred to in the Registration and Collection Act as "the payer". Section 17 identifies what is a registrable maintenance liability and Div 2 of Pt III (ss 20‑32) provides for the registration of such liabilities. Section 30 of the Registration and Collection Act provides that, if a registrable maintenance liability is registered, first, the amounts payable "are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register" and, secondly, "the payee is not entitled to, and may not enforce payment of, amounts payable under the liability". Registered maintenance liabilities that are enforceable under the Registration and Collection Act are called "enforceable maintenance liabilities"[19]. An amount that is a debt due to the Commonwealth under s 30 is called a "child support debt"[20].

    [19]s 4.

    [20]s 4.

34. Part IV of the Registration and Collection Act (ss 43‑65) provides for the collection of amounts due to the Commonwealth for enforceable maintenance liabilities. If the payer is an employee, the general rule is that, as far as practicable, the amount will be collected by deduction from the payer's salary or wages[21].  Provision is made for the Registrar to give notice to the employer of such a payer[22] instructing the employer to make periodic deductions from salary or wages paid by the employer to the payer. Section 46 obliges the employer to make the necessary deductions; s 47 requires the employer to pay to the Registrar the amounts deducted. An amount payable to the Registrar under Pt IV of the Act (including, therefore, an amount payable under s 47) is a debt due to the Commonwealth[23]. Until the amendment of the Registration and Collection Act in 2001[24], the Registrar was the Commissioner of Taxation[25] and each Second Commissioner and Deputy Commissioner of Taxation was a Deputy Child Support Registrar[26].  The amending legislation provided that the Registrar was to be "the person who holds, or is acting in, the position known as the General Manager of the Child Support Agency", or if there is no such position, the person holding, or acting in, a position specified by the Secretary of the Department of Family and Community Services.

    [21]s 43.

    [22]s 45.

    [23]s 64.

    [24]Child Support Legislation Amendment Act 2001 (Cth), Sched 5, Item 38.

    [25]Registration and Collection Act, s 10(2).

    [26]s 12.

35. Part VI of the Registration and Collection Act (ss 73‑79A) provides for payments to payees. (The Act defines[27] the "payee" in relation to a registrable maintenance liability as the person who is entitled, or would but for the registration of the liability under the Act be entitled, to receive payments under the liability.) By s 76 it is provided that every payee of a registered maintenance liability is entitled to be paid, each month, an amount equal to the aggregate of amounts deducted by an employer under Pt IV during the previous month, amounts received by the Registrar otherwise than under Pt IV during the payment period and, to the extent they have not previously been paid, any amounts deducted or received in respect of prior periods (in each case excluding any amount not due and payable by the payer on the seventh day of the current month).

    [27]s 4.

36. Because the payment is to be made by the Registrar, and because both the amounts due under a registered maintenance liability and the amounts that employers have deducted on this account are debts due to the Commonwealth, provision is made in Pt VI for the treatment of receipts and payments.

37. When the Registration and Collection Act was first enacted, payments were to be made from the Child Support Trust Account. That account, established under the Registration and Collection Act, was a trust account for the purposes of s 62A of the Audit Act 1901 (Cth)[28].  To give effect to new Commonwealth financial management arrangements (made under the Financial Management and Accountability Act 1997 (Cth)) the Child Support Trust Account was replaced, in 1998[29], by the Child Support Reserve, a component of the Reserved Money Fund. Provision was made in the Registration and Collection Act for transfers into[30] and payments out of[31], that fund.

    [28]Registration and Collection Act, s 73.

    [29]Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth), Sched 2, Items 605-620.

    [30]s 74.

    [31]s 75.

38. All of the amounts received by the Registrar (as payment of child support debts or deductions made by employees, as voluntary payments, or as refunds of amounts that should not have been paid) were "public money" under the Financial Management and Accountability Act[32] and therefore had to be credited to the Consolidated Revenue Fund[33].  Transfers into the Reserve came from the Consolidated Revenue Fund. Section 74 of the Registration and Collection Act required the transfer to the Reserve, from the Consolidated Revenue Fund, of amounts equal to amounts that the Registrar received in payments of child support debts, whether by payers or employers of payers, together with amounts equalling payments made voluntarily by payers and refunds of amounts that should not have been paid out of the Reserve. Moneys standing to the credit of the Reserve were to be applied in making payments to payees of registered maintenance liabilities[34].  (It is not necessary to notice other ways in which moneys standing to the credit of the Reserve could be applied.)

    [32]s 5, definition of "public money".

    [33]Financial Management and Accountability Act 1997 (Cth), s 18.

    [34]s 75(a).

39. By the Financial Management Legislation Amendment Act 1999 (Cth) ("the Financial Amendment Act"), the Financial Management and Accountability Act was amended in a number of ways.  The definition of Reserved Money Fund was repealed[35].  Components of the Reserved Money Fund became Special Accounts and each component was renamed as an "Account" rather than a "Reserve"[36].  References to amounts being transferred from the Consolidated Revenue Fund to a Reserve were to be read as references to crediting the relevant account[37] and references to amounts being transferred to the Consolidated Revenue Fund were to be read as debiting the relevant account[38].

    [35]Financial Amendment Act, Sched 1, Item 13.

    [36]Financial Amendment Act, s 5(5).

    [37]Financial Amendment Act, s 5(6)(a).

    [38]Financial Amendment Act, s 5(6)(b).

40. For present purposes, however, the essence of the arrangements reflected in Pt VI of the Registration and Collection Act remained unaffected by these changes. Amounts equal to amounts received by the Registrar in payment of child support debts (including amounts received from employers who had deducted amounts from salary or wages) are to be credited to the Child Support Account[39].  Moneys standing to the credit of the Child Support Account are to be applied in making payments to payees of registered maintenance liabilities.  (Again, other ways of applying moneys standing to the credit of the Account need not be noticed.)

    [39]Registration and Collection Act, s 74.

41. Because the amount which is to be paid to a payee is calculated by reference (among other things) to amounts deducted by an employer (as distinct from amounts deducted and remitted) provision is also made (by s 77) for an amount equal to any unremitted deduction to be credited to the Child Support Account.  The total amounts credited to the Child Support Account equal the total amounts actually paid out to payees and they equal the total amounts paid or given up by payers.  If employers' obligations to remit deductions made from salary or wages were all met, total payments into the Consolidated Revenue Fund would equal the total payments made out of the Child Support Account.

    The Assessment Act

42. The Assessment Act commenced operation on 1 October 1989 (16 months after the Registration and Collection Act came into force). The Assessment Act records[40] that "[t]he parents of a child have the primary duty to maintain the child". This duty is said, by the Assessment Act[41], (a) to be not of lower priority than the duty of the parent to maintain any other child or another person; (b) to have priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or another person the parent has a duty to maintain; and (c) to be not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to an income tested pension, allowance or benefit. Like the Registration and Collection Act, the principal object of the Assessment Act is said[42] to be "to ensure that children receive a proper level of financial support from their parents".

    [40]s 3(1).

    [41]s 3(2).

    [42]s 4(1).

43. Part 5 of the Assessment Act (ss 35‑79) provides for the administrative assessment of child support. "Child support" is defined[43] as "financial support under [the Assessment] Act, including financial support under [the] Act by way of lump sum payment or by way of transfer or settlement of property". An administrative assessment of child support requires the application of one or more of the several statutory formulae that is, or are, apposite in the particular circumstances. Section 79 of the Assessment Act provides that "[a]n amount of child support due and payable by a liable parent to a carer entitled to child support is a debt due and payable by the liable parent to the carer".

    [43]s 5.

44. Part 6 of the Assessment Act (ss 80‑98) provides for the parents of eligible children to make consent arrangements between themselves or with an eligible carer about the child support payable for the child. Those arrangements can be varied by subsequent agreement. Application can be made to the Registrar for acceptance of a child support agreement[44].  Upon acceptance of the agreement, the person by whom child support is to be paid or provided under the agreement becomes a "liable parent"[45].  The provisions governing consent arrangements need not be noticed further.

    [44]ss 88-89.

    [45]s 93(1)(e).

45. Where there has been an administrative assessment both the liable parent and the carer may lodge with the Registrar an objection against the assessment[46]. A person aggrieved by a decision on the objection may, pursuant to s 110 of the Assessment Act, appeal to a court having jurisdiction under that Act.

    [46]ss 98X, 98Y.

46. Again, where there has been an administrative assessment, both the liable parent and the carer may apply to the Registrar for a determination that there be a departure from the provisions of the Assessment Act relating to administrative assessment of child support[47].  Determinations of this kind are usually referred to as "departure determinations".  The Registrar can also initiate the making of a departure determination[48].  The decision to make or refuse a departure determination is subject to the same objection[49] and similar appeal[50] procedures as administrative assessments.

    [47]s 98B.

    [48]s 98K.

    [49]s 98X(1)(d).

    [50]s 116.

    Laws imposing taxation?

47. Although the plaintiff's statement of claim alleged that both the Registration and Collection Act and the Assessment Act are invalid, only the Registration and Collection Act was alleged to be an Act imposing (or, as the statement of claim put it, "dealing with") taxation. The plaintiff submitted that "[t]he actual imposition of this 'child support tax' is achieved by ss 17, 24A and 30 of the Registration and Collection Act while the specification of persons who are liable to taxation and the definition of their liability are to be found in the Assessment Act". Of the various provisions of Div 2 of Pt III which provide for registration of registrable maintenance liabilities, particular reference was made by the plaintiff to s 24A because it was under that section that the assessment of his liability to pay child support was registered.

48. It is clear that the Registration and Collection Act provides for the compulsory exaction of money which is to be paid to the Commonwealth. It is equally clear that it is inappropriate to speak of the exaction being in payment for any services rendered by the Commonwealth. Further, it may readily be assumed that the scheme for which the Registration and Collection Act provides is a scheme which is seen as being of public benefit, even though its principal focus can also be seen as being on the performance of each individual's obligation to provide child support for his or her child or children, and the satisfaction of the need, and the right, of that child or those children to that support. It by no means follows, however, that the Registration and Collection Act as a whole, or particular provisions of it, are properly described as a law imposing taxation.

49. All of the features which Latham CJ identified in Matthews v Chicory Marketing Board (Vict)[51] as typical of a tax – compulsory exaction, by a public authority, for public purposes, enforceable by law, and not being payment for services rendered – are important.  The presence or absence of none of them, however, is determinative of the character of the legislation said to impose a tax.  It is necessary, in every case, to consider all the features of the legislation which is said to impose a tax.

    [51](1938) 60 CLR 263 at 276.

50. As was said in the joint judgment of the whole Court in Air Caledonie International v The Commonwealth[52]:

    "[T]here is no reason in principle … 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."

    Secondly, as the Court also pointed out in Air Caledonie[53], the reference to "payments for services rendered", as an antonym for "tax", is only one example of various special types of exactions of money which are not taxes.  Charges for the acquisition or use of property, fees for a privilege, and fines or penalties for criminal conduct are some other examples of what are unlikely to amount to forms of tax.

    [52](1988) 165 CLR 462 at 467.

    [53](1988) 165 CLR 462 at 467.

51. Thirdly, in Australian Tape Manufacturers Association Ltd v The Commonwealth[54], the majority of the Court concluded that the better view is that it is not essential to the concept of a tax that the exaction be by a public authority because it was "scarcely to be contemplated"[55] that the character of an impost as a tax depends upon whether the authority is a public authority.  Nonetheless, as the majority also noted[56], the character of the authority concerned may bear upon whether the purposes on which moneys raised are to be expended are themselves public.  These matters were seen as significant in Tape Manufacturers because the impost then under consideration was to be paid directly to a collecting society designated under the relevant legislation; it was not to be paid into the Consolidated Revenue Fund.

    [54](1993) 176 CLR 480.

    [55](1993) 176 CLR 480 at 501 per Mason CJ, Brennan, Deane and Gaudron JJ.

    [56](1993) 176 CLR 480 at 501.

52. Here, as has been noted earlier, amounts due from payers, and from the employers of payers, are debts due to the Commonwealth.  When received, the amounts are paid into the Consolidated Revenue Fund.  Amounts equal to what is received and amounts equal to deductions, made but not remitted, are then credited to the Child Support Account from which amounts payable to those entitled are paid.  What is the significance of the fact that the amounts exacted are paid into the Consolidated Revenue Fund?

53. Section 81 of the Constitution provides that:

    "All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution."

54. In Tape Manufacturers, it was said[57] that "[i]n Australia, the fact that a levy is directed to be paid into the Consolidated Revenue Fund has been regarded as a conclusive indication that the levy is exacted for public purposes".  Support for this proposition was found primarily in what was said by Isaacs J in R v Barger; The Commonwealth v McKay[58]:

    "[T]he imposition of a tax on any person or thing for the benefit of the Consolidated Revenue is taxation, and taxation within the meaning of the Constitution"

    and in what was said by Latham CJ in Moore v The Commonwealth[59]:

    "The moneys collected are paid into consolidated revenue …  The moneys can then be spent for any purpose for which the Commonwealth may lawfully appropriate money."

    [57](1993) 176 CLR 480 at 503.

    [58](1908) 6 CLR 41 at 82.

    [59](1951) 82 CLR 547 at 561.

55. The destination of money that is exacted may well be significant in deciding whether it is exacted for public purposes.  A requirement that a sum which legislation requires is paid be paid into the Consolidated Revenue Fund does not conclude the issue of characterising the law as one imposing taxation.

56. Both ss 55 and 81 must be understood having regard to their constitutional purpose. They form part of the means of effecting the legislative, as distinct from executive, control of the raising and expenditure of public moneys. Section 53, dealing with the powers of the Houses of Parliament in respect of proposed laws appropriating revenue or moneys, or imposing taxation, s 54 dealing with proposed laws which appropriate revenue or moneys for the ordinary annual services of the Government, s 56 about messages recommending the purpose of any appropriation, s 82 about expenditure charged on the Consolidated Revenue Fund and s 83 about the need for an appropriation made by law for the drawing of money from the Treasury of the Commonwealth, all have their own part in that scheme.

57. Sections 81, 82 and 83, taken together, give effect to the proposition described by Durell in his work on Parliamentary Grants[60]:

    "The prohibition of raising taxes without parliamentary authority would be nugatory if the proceeds, even of legal taxes, could be expended at the will of the sovereign.  The right, therefore, of appropriation was a logical consequence of the right of levying supplies."

    In particular, the constitutional requirement of s 81, for legislative appropriation of the Consolidated Revenue Fund formed of "[a]ll revenues or moneys raised or received by the Executive Government of the Commonwealth", is both the consequence of, and a necessary step in the effecting of, parliamentary control over taxation.

    [60]Durell, The Principles and Practice of the System of Control over Parliamentary Grants, (1917) at 3.  See also The Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198 at 224 per Isaacs and Rich JJ; New South Wales v Bardolph (1934) 52 CLR 455 at 475‑478 per Evatt J.

58. It follows that every tax that is raised must be paid into the Consolidated Revenue Fund.  But the converse is not universally true.  Not every sum that statute requires to be paid to the Commonwealth, and which is paid into the Consolidated Revenue Fund, is a tax. Perhaps so much would follow inevitably from the statement in s 53 that "a proposed law shall not be taken … to impose taxation, by reason only of its containing provisions for the imposition … of fines or other pecuniary penalties, or for the demand or payment … of fees for licences, or fees for services under the proposed law." Whether or not that is so, it is a proposition that is now well established and not challenged.

59. What marks the present exactions apart from other exactions that have been held to be taxes is that in every case the sum exacted under the Registration and Collection Act is, when the maintenance liability is first registered, the amount which otherwise would be due and payable by the payer in satisfaction of an existing obligation owed by that payer to the carer of a child as maintenance for the child.

60. There is, therefore, under the Registration and Collection Act, more than the mere earmarking of a compulsory exaction for a particular application. Imposing a financial burden on one group in society for the benefit of another group in society will often constitute a tax. Pointing to some identifiable relationship between the group of payers and the group of recipients or even to some relationship between a particular payer and a particular recipient will not usually require some different conclusion. Under the Registration and Collection Act, however, the obligation to make a payment to the carer of the child is replaced by the obligation to pay the same amount to the Commonwealth. That obligation is coupled with the creation of a new right in the carer to have the Commonwealth pay the carer whatever the payer thereafter gives up – whether by making a payment to the Commonwealth or by suffering a compulsory deduction from salary or wages. The combination of these features – the substitution of a new obligation to the Commonwealth equal to an existing obligation which is terminated, coupled with the substitution of new rights in the carer against the Commonwealth equal to the extent to which the payer performs his or her obligation to the Commonwealth – takes this compulsory exaction outside the description of "taxation".

61. The fact that the original liability may later be varied requires no different conclusion. Subsequent variation of the amount for which a payer is liable does not diminish the significance of the fact that, when first registered, the liability owed by a payer to a carer is brought to an end and replaced by an obligation, in the same amount, owed to the Commonwealth. All that is changed by registration is the identity of the party to whom the liability is owed. Neither the existence nor the exercise of the power to make changes to the amount of the liability, in response to changed circumstances, alters the character of the exaction. The exaction not being a tax, the Registration and Collection Act is not a law imposing taxation. The first challenge to the Registration and Collection Act fails.

    Judicial power

62. The plaintiff submitted that provisions of the Assessment Act, and the Registration and Collection Act, purport to confer the judicial power of the Commonwealth on the Registrar. Particular reference was made to departure determinations made by the Registrar under Pt 6A of the Assessment Act, but the plaintiff's submissions were not confined to the validity of that part of the Act. Rather, it was submitted that both Acts provided for the Registrar to exercise the judicial power of the Commonwealth first, because the Registrar's decisions under the Acts are binding, authoritative and conclusive and, secondly, because the Registrar's decision fixed the extent of, or varied the extent of, existing rights and duties respecting the maintenance of children.

63. That the Registrar's determinations, if made within statutory power and otherwise made according to the requirements of the relevant Acts, are binding and authoritative may be readily accepted.  So much follows from the terms of the Acts.  Account must, of course, be taken of the various provisions for "appeal" against, or review of, determinations but, subject to that caveat, it may also be accepted that the determinations are conclusive.  It does not follow, however, that the Acts confer judicial power on the Registrar.

64. The plaintiff submitted that the rights and duties respecting maintenance of children are now found in the Family Law Act 1975 (Cth) and are not rights and duties derived from the Assessment Act or the Registration and Collection Act. It was submitted that the Assessment Act and the Registration and Collection Act fixed the extent of, or varied the extent of, rights and duties which were to be found in s 66C of the Family Law Act.  That section provides that, subject to Div 7 of Pt VII of that Act, "[t]he parents of a child have … the primary duty to maintain the child".

65. No doubt it is right to say, as the plaintiff submitted, that under English common law a parent owed no duty to maintain a child that was a duty enforceable by court action[61].  But, in England, statute intervened in that regard as early as the first Poor Law.  That obliged parents, on pain of penalty, to maintain their poor children[62].  So, too, in Australia, legislation in one form or another has, for many years, obliged one or both parents of a child to provide some maintenance for the child[63].  And often, such legislation has provided for the curial determination of the amount that was to be paid as maintenance[64]. It may be doubted, however, that s 66C of the Family Law Act, or the other provisions of subdiv B of Div 7 of Pt VII of that Act which set out "statements of objects and principles relevant to the making of child maintenance orders"[65], can be understood as creating a duty, the terms or content of which are different from, or wider than, the particular obligations which arise under the other provisions of the Family Law Act which deal with maintenance of children and orders made under that Act.

    [61]Mortimore v Wright (1840) 6 M & W 482 [151 ER 502]; Shelton v Springett (1851) 11 CB 452 [138 ER 549]; Bazeley v Forder (1868) LR 3 QB 559 at 565; Coldingham Parish Council v Smith [1918] 2 KB 90 at 96‑97; National Assistance Board v Wilkinson [1952] 2 QB 648 at 657. Cf the position under the common law of Scotland noted in Coldingham Parish Council v Smith [1918] 2 KB 90 at 97.

    [62]The Poor Relief Act 1601 (UK), s 7 (43 Eliz c 2).

    [63]Wives Act 1840 (NSW) (4 Vict No 5).

    [64]See, for example, Wives Act 1840, s 7.

    [65]Family Law Act, s 66A(a).

66. If orders for the maintenance of children are made under the Family Law Act, those orders may give rise to a registrable maintenance liability under the Registration and Collection Act[66]. The Registrar's exercise of the power to register either a liability of that kind, or any other form of registrable maintenance liability, does not constitute the exercise of the judicial power of the Commonwealth. It is an entirely administrative act which requires the Registrar to decide whether the statutory criteria for registration are met. Very many administrative tasks for which legislation provides require decisions of that kind. In the end, it appeared that the weight of the plaintiff's argument did not rest on this aspect of the Registration and Collection Act. Rather, the plaintiff's submissions focused more upon the powers of the Registrar under the Assessment Act than upon the Registrar's duty to register certain kinds of liability under the Registration and Collection Act.

    [66]s 17.

67. It is, therefore, necessary to notice some further aspects of the Assessment Act. Of those, there is one to which reference has already been made but which is of particular importance. Section 79 of the Assessment Act provides that an amount of child support under the Act, which is due and payable by a liable parent to a carer, is a debt due and payable by the liable parent to the carer. It may be sued for and recovered in a court. What is important for the purposes of the present inquiry is, first, that the Registrar can take no step to enforce an assessment made under the Act – that is a matter for those who have the benefit or burden of the assessment and it is to be done by recourse to the courts in the same way as any other debt is enforced. There is not that capacity (so often found when judicial power is exercised) to make a decision enforceable by execution[67].  Secondly, the assessment creates and quantifies the debt.  It does not determine a question about the existence of any right or obligation[68]. It is the factum on which other provisions of the Assessment Act and the Registration and Collection Act operate, thereby creating new rights and new obligations which are to govern the future[69].

    [67]Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268 per Deane, Dawson, Gaudron and McHugh JJ. See also Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 176 per Isaacs J; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 198‑199 per Latham CJ.

    [68]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J.

    [69]Tasmanian Breweries (1970) 123 CLR 361 at 378 per Kitto J.

68. An administrative assessment of child support under Pt 5 of the Assessment Act requires[70] the Registrar to "assess under [the Assessment Act] the annual rate of the child support payable by the liable parent to the carer entitled to the child support for the child for the days in the child support period that starts on the day the application was made". This assessment requires the application of relevant formulae. The basic formula[71] requires the multiplication of a "Child support percentage" (fixed by s 37 according to the number of children) and what is called the "Adjusted income amount".  The adjusted income amount is determined by reference to the amount of the liable parent's taxable income for the previous year of income, adjusted[72] to take account of some other amounts – exempt foreign income, rental property loss and reportable fringe benefits total – amounts which, it might be thought, would increase the liable parent's capacity to pay child support.

    [70]s 31(2).

    [71]s 36.

    [72]s 38A.

69. The Assessment Act provides for some modifications of the basic formula in certain cases[73].  It provides for cases in which the care of children is shared or divided between parents[74], for cases where there are two liable parents[75], for cases where there are two or more carers entitled to child support[76], and for cases where care of the child is modified or affected by a court order or parenting plan[77].  The detail of those provisions is not important.  What is important is that all of them require the application of relevant formulae.

    [73]Pt 5, Div 2, subdivs C and D (ss 42-46).

    [74]Pt 5, Div 2, subdiv E (ss 47-49).

    [75]Pt 5, Div 2, subdiv F (ss 50-52).

    [76]Pt 5, Div 2, subdiv G (ss 53-54).

    [77]Pt 5, Div 2, subdiv H (ss 54A-54B).

70. None of the provisions requiring administrative assessment of child support permit, let alone require, the Registrar to make any decision other than one attributing the circumstances disclosed by the application to one or other of the various statutory classes we have just mentioned, followed by a mathematical calculation of the monetary consequences that the Assessment Act prescribes. And because "the Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter"[78] there is no requirement for the Registrar to engage in any processes of fact finding[79].

    [78]s 29(1).

    [79]R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 627 per Mason J.

71. The Registrar may make a departure determination on the application of a liable parent or carer only if satisfied of certain matters[80].  They are[81] that, in the special circumstances of the case, the capacity of either parent of the child to provide financial support for the child is significantly reduced for one of several specified reasons[82], or the costs of maintaining the child are significantly affected by one of several matters[83], or the application of the provisions of the Act for dealing with administrative assessments "would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child"[84], again, for one or other reason identified in the Act.

    [80]Departure determinations initiated in this way are regulated by Pt 6A, Div 2 (ss 98B‑98JA).

    [81]ss 98C and 117(2).

    [82]s 117(2)(a).

    [83]s 117(2)(b).

    [84]s 117(2)(c).

72. Similarly, the Registrar may initiate the making of a departure determination under Pt 6A[85] if, among other things, he or she is satisfied that the application of the provisions relating to administrative assessment "would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, earning capacity, property and financial resources of either parent"[86].

    [85]Departure determinations initiated by the Registrar are regulated by Pt 6A, Div 3 (ss 98K‑98R).

    [86]s 98L(1)(a).

73. Obviously, the provisions governing both kinds of departure determination, with their reference to what would be "unjust and inequitable" require the making of a judgment about which opinions may differ in a particular case. And because the circumstances that may touch a decision about what would be unjust and inequitable may vary so widely, provision is made for the Registrar to refuse to make a departure determination, whether initiated by a liable parent or carer or by the Registrar, where "the issues involved are too complex to be dealt with" under Pt 6A[87]. In such a case, the Registrar may recommend that application be made to a court having jurisdiction under the Act for an order under Div 4 of Pt 7.

    [87]ss 98E and 98R.

74. Part 7 of the Assessment Act (ss 99‑146) deals with the jurisdiction of courts under the Act. In particular, provision is made[88] for applications to a court for a declaration about the applicability of the administrative assessment provisions.  Provision is made[89] for what are called "appeals" against incorrect administrative assessments and[90] for orders for departure from administrative assessment.  (The reference to "appeal", although similarly used in other contexts[91], may mislead.  The proceeding which is so described is the first application of judicial power; it is an exercise of original, not appellate jurisdiction.)  An order by a court for departure from an administrative assessment may be made on the grounds on which the Registrar may make a departure determination[92]. The other provisions of Pt 7 of the Assessment Act are not immediately relevant to the present question.

    [88]Pt 7, Div 2 (ss 106-109).

    [89]Pt 7, Div 3 (ss 110-113).

    [90]Pt 7, Div 4 (ss 114-120).

    [91]For example, Administrative Appeals Tribunal Act 1975 (Cth), s 44.

    [92]s 117.

75. Finally, and no less importantly, it is necessary to notice the provisions made for objection to the Registrar's assessment of child support, whether by way of administrative assessment or departure determination.  Part 6B of the Act (ss 98W‑98ZJ) provides for objections to and internal reconsideration of decisions of the Registrar, including those decisions that are reviewable by a court having jurisdiction under the Act.  The decisions reviewable by a court include decisions to accept or not accept an application for administrative assessment[93], decisions as to the particulars of an administrative assessment[94] and decisions to make or refuse to make a departure determination, whether initiated by the liable parent or carer, or by the Registrar[95].  A person may not appeal to a court against the particulars of an administrative assessment unless the person has objected under s 98X, and the objection has been disallowed or allowed only in part[96].  Similarly, an application for a declaration about an administrative assessment may be made only if the objection procedure has first been exhausted[97].

    [93]s 98X(1)(a) and (b).

    [94]s 98X(1)(c).

    [95]s 98X(1)(d).

    [96]s 110(1A).

    [97]ss 106(1A), 106A(1A), 107(1A).

76. Several points emerge from an examination of these features of the Assessment Act. First, as mentioned at the outset, the Registrar's assessment, whether as an administrative assessment or as a departure determination, is the factum by reference to which the statute creates rights for the future which then are to be enforced by resort to the courts; the assessment does not adjudge existing rights.  Secondly, the Registrar's assessment, again whether as an administrative assessment or as a departure determination, is not final.  It is open to the processes of objection and then "appeal" to a court.  Thirdly, so far as administrative assessments are concerned, the statutory processes are wholly administrative.  So far as departure determinations are concerned, the Registrar may make such a determination, but need not if the issues are "too complex".  If the Registrar does make a departure determination, the party dissatisfied can object and if still dissatisfied go to a court; if the Registrar does not make such a determination, again the party dissatisfied can object and then go to court.  In either event the Court will decide the question afresh, without regard to what the Registrar has done.

77. Neither the Registration and Collection Act nor the Assessment Act vests the judicial power of the Commonwealth in the Registrar.

78. The questions reserved should be answered as follows:

    Question 1Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant a tax?

    AnswerNeither Act is, within the meaning of s 55 of the Constitution, a law imposing taxation.

    Question 2If "yes" to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?

    AnswerUnnecessary to answer.

    Question 3Do 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?

    AnswerNo.

    Question 4What orders for the further disposition of the action should be made in the light of the answers to these questions?

    AnswerThere should be judgment for the defendants in the action, with costs, including the costs of the case stated under s 18 of the Judiciary Act 1903 (Cth).

79. McHUGH J.   I agree with the answers proposed by Gleeson CJ to the questions reserved for consideration by the Full Court of this Court and with his Honour's reasons for answering the questions in the manner that he does.

80. I would only add that the amounts collected by the Registrar do not acquire the characterisation of "taxation" merely because they form part of the Consolidated Revenue Fund.  Before the decision in Australian Tape Manufacturers Association Ltd v The Commonwealth[98], it might have been thought that no imposition could be a tax unless it formed part of the Consolidated Revenue Fund.  But the decision in that case denied that proposition. Whether or not that case was correctly decided – and I remain of the view that it was wrongly decided – it does not follow that a compulsory exaction for a public purpose is a tax simply because it forms part of the Consolidated Revenue Fund.  Penalties payable to the Commonwealth are compulsory exactions.  Quite often fees payable to the Commonwealth are compulsory exactions.  Because those penalties and fees are part of the "revenues or moneys raised or received by the Executive Government of the Commonwealth"[99], they form part of the Consolidated Revenue Fund. But that fact does not by itself mean that they are taxes. If there were any doubt about that point, s 53 of the Constitution quashes it. That section declares that "a proposed law shall not be taken … to impose taxation, by reason only of its containing provisions for the imposition … of fines or other pecuniary penalties, or for the demand or payment … of fees for licences, or fees for services under the proposed law".

    [98](1993) 176 CLR 480.

    [99]Constitution, s 81.

81. KIRBY J.   These proceedings come before the Full Court on a case stated by Callinan J[100].  They raise two questions of a constitutional character, concerning the legislative scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration and Collection Act") and the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") (together, "the Acts").

    [100]Case stated, 13 March 2001.

82. The first question concerns the validity of the Acts, it being contended that they amount to "laws imposing taxation" within the meaning of s 55 of the Constitution and do not comply with the requirements governing laws of that character. The second is whether, by purporting to authorise the Child Support Registrar ("the Registrar") to make assessments and determinations, enter particulars, issue notices and collect and apply payments, the Acts invalidly attempt to confer on the Registrar the judicial power of the Commonwealth, contrary to the requirements of Ch III of the Constitution.

    The facts and issues

83. Mr Anthony Luton ("the plaintiff") and Ms Gillian Lessels ("the first defendant") began to cohabit in a de facto relationship, in about November 1991.  They never married.  In August 1992 cohabitation ceased.  In February 1993, a child was born as a consequence of their relationship.  The legislative provisions governing the financial support of that child have given rise to the present controversies.

84. In July 1993, the first defendant applied to the Registrar (the second defendant) for an assessment under the Assessment Act and registration of a child support arrangement under the Registration and Collection Act. In August 1993, the Registrar made an assessment of the liability of the plaintiff to pay child support. Pursuant to the Registration and Collection Act, the Registrar registered a registrable maintenance liability that arose as a result of such assessment[101].  In October 1994, the Registrar amended that assessment[102] and varied the commencement date after which the plaintiff had to pay child support.  The particulars entered in the Child Support Register were amended to conform to this variation[103].

    [101]Registration and Collection Act, s 24A.

    [102]Assessment Act, s 75.

    [103]Registration and Collection Act, s 37A.

85. There followed applications and counter-applications to the Registrar.  In December 1993, the first defendant applied for a "departure" from the assessment previously made, so as to increase the rate of child support payable[104]. In February 1994 the plaintiff, by way of reply to the first defendant's application, sought a reduction in the child support payable[105].

    [104]Assessment Act, s 98B. A number of grounds are set out in the Assessment Act, s 117.

    [105]Assessment Act, s 98G(2).

86. In April 1994 a Child Support Review Officer, acting as a delegate of the Registrar, made assessments of the child support income payable[106] for the period 1 January 1994 to 30 June 1994, for the ensuing year and subsequent years. The Registrar entered particulars of the assessments in the Child Support Register[107].

    [106]Assessment Act, s 98C.

    [107]Registration and Collection Act, s 37A.

87. The Registrar has enforced collection of the amounts payable by the plaintiff in various ways, including by issuing notices to the plaintiff's employers to make deductions from his salary[108].  In accordance with such notices, the plaintiff's employers have made periodic deductions of that kind[109] and have paid the amounts to the Registrar[110].  The Registrar has also applied an amount owing by the Commonwealth to the plaintiff under the Income Tax Assessment Act 1936 (Cth) in reduction of the debt due by the plaintiff to the Commonwealth[111]. By inference, the Registrar has paid the sums so received to the first defendant, who has the care and custody of the child.

    [108]Registration and Collection Act, s 45(1) and (2).

    [109]Registration and Collection Act, s 46.

    [110]Registration and Collection Act, s 47.

    [111]Registration and Collection Act, s 72.

88. The questions asked in the case stated are set out in the reasons of other members of this Court[112].  There is no point in repeating them.

    [112]Reasons of Gleeson CJ at [29], Gaudron and Hayne JJ at [78], Callinan J at [150].

89. Several amendments have been made to the Acts whose validity is in question in these proceedings.  The questions in the case stated do not identify the date at which the issue of validity is to be determined.  However, it was not disputed that the answers could be given by reference to the legislation as it now stands.  The relevant legislation has been described in the reasons of Gleeson CJ, Gaudron and Hayne JJ and Callinan J[113].

    [113]Reasons of Gleeson CJ at [4]-[7], Gaudron and Hayne JJ at [32]-[46], Callinan J at [152]-[175].

90. Few would question the ethical principle that "parents of a child have the primary duty to maintain the child"[114]. Few, if any, would cavil with legislation intended, as the Assessment Act proclaims it is, to "ensure that children receive a proper level of financial support from their parents"[115].  However, the issues before the Court are not whether the legislation has laudable objectives or beneficial consequences in its ordinary operation.  The only issues are the two points of constitutional objection raised by the plaintiff.

    [114]Assessment Act, s 3(1).

    [115]Assessment Act, s 4(1).

    Constitutional underpinning

91. Except under its territories power[116] and any other specific powers applicable, the Federal Parliament does not have general legislative power to make laws with respect to the children of a couple who are unmarried ("ex-nuptial children"), such as the child of the plaintiff and the first defendant.  There is power to make laws with respect to divorce and matrimonial causes "and in relation thereto, parental rights, and the custody and guardianship of infants"[117].  There is also power to make laws with respect to "child endowment", which makes no distinction in respect of the marital status of the child's parents[118].  However, neither of those powers afforded the legislative authority to the Federal Parliament necessary to extend the application of the Acts to apply to the support of the child of the present parties.

    [116]Constitution, s 122.

    [117]Constitution, s 51(xxii).

    [118]Constitution, s 51(xxiiiA).

92. In relation to ex-nuptial children, the validity of the impugned Acts in relation to the Australian States rests upon a reference of power to the Commonwealth under the Constitution[119]. Such reference was envisaged by the terms of the Acts[120] and has occurred in five of the States[121], with Western Australia adopting the federal Act as a State Act[122]. The Acts, so far as they relate to the maintenance of children, "appl[y] in and in relation to the Territories"[123].

    [119]Constitution, s 51(xxxvii).

    [120]Assessment Act, s 13; Registration and Collection Act, s 5.

    [121]Commonwealth Powers (Family Law - Children) Act 1986 (NSW); Commonwealth Powers (Family Law - Children) Act 1986 (Vic); Commonwealth Powers (Family Law - Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); and Commonwealth Powers (Family Law) Act 1987 (Tas).

    [122]Child Support (Adoption of Laws) Act 1990 (WA).

    [123]Registration and Collection Act, s 5(3); Assessment Act, s 13(3). See also Registration and Collection Act, s 9.

93. The plaintiff, first defendant and the child are resident in Australia. By virtue of the foregoing provisions, the two Acts apply in relation to the parties and the child. This was not contested. The validity of the Acts in so far as they depended upon the reference of powers was also not disputed. Nor did any party suggest that a referral of power could alter or limit, even by implication, any of the express terms of, or implications in, the federal Constitution. A power referred to the Federal Parliament under the Constitution[124], like any other power in s 51 of the Constitution (including the taxation power[125]), is subject to the requirements of s 55 of the Constitution and of Ch III.

    [124]Constitution, s 51(xxxvii).

    [125]Constitution, s 51(ii).

    The first issue - are the Acts taxation laws?

94. The usual criterion:  Where contested questions arise as to whether an impugned law is one "imposing taxation", it is common for this Court to start with the definition of such a law offered by Latham CJ in Matthews v Chicory Marketing Board (Vict)[126].  According to his Honour's description, a law imposing taxation is one that involves "a compulsory exaction of money by a public authority for public purposes, enforceable by law, and … not a payment for services rendered".

    [126](1938) 60 CLR 263 at 276. See Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 189 [132] ("Airservices") where Gaudron J described this as the "traditional" understanding.

95. The plaintiff's argument: The plaintiff submitted that when that traditional definition was applied to the facts of this case, the impugned legislative scheme constituted "laws imposing taxation". His argument went thus: There is an exaction of money by a public authority because, by the Registration and Collection Act, a debt of a purely private character is converted into one to the Commonwealth and provision is then made for compulsory deduction of that debt from a person's salary, wages or other entitlements, just as tax instalments are commonly so deducted. Such deductions do not represent a payment by the plaintiff for services rendered by the Commonwealth, the Registrar or any other public authority. They are "enforceable by law" in accordance with the scheme of enforcement laid down by the Registration and Collection Act. Moreover, the exaction of moneys, from people like the plaintiff, is for a public purpose. That is the provision of support for a defined class of children and the enforcement of payment for that purpose from the sources of funds available to the liable parent who has not made payments for child support acceptable to the other parent and to the law.

96. Taxation laws and the parliamentary context: In giving meaning to the expression "laws imposing taxation" in s 55 of the Constitution, it is essential both to see that section in its context, particularly in relation to the restrictions imposed by s 53, and to recall the history that preceded the making of the Constitution. Much of the recent Australian debate about the meaning of "laws imposing taxation" has taken place with only occasional glances at these considerations.

97. To the extent that the expression "laws imposing taxation" is given an over-broad meaning, s 55 could have consequences that tend to throw the integrated constitutional provisions out of joint. Section 53 of the Constitution provides that "[p]roposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate" and that "[t]he Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government."[127]  The grant of legislative power to make laws with respect to taxation should be noted[128], as well as the provisions in Ch IV of the Constitution ("Finance and Trade") establishing the Consolidated Revenue Fund and requiring that "[a]ll revenues or moneys raised or received by the Executive Government of the Commonwealth" shall form that Fund, to be appropriated for the purposes of the Commonwealth
    

    [127]Constitution, s 53 (emphasis added).

    [128]Constitution, s 51(ii).

    [129]Constitution, s 81. This provision may be traced to the Imperial Statute 27 Geo III c 13 (1787), which sought to ensure that the revenues of the Crown, including taxes, were brought together in one Consolidated Fund under the control of Parliament: Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 503 ("Tape Manufacturers"); Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 575-577.

    [130]Constitution, s 83.

    in the manner provided by the Constitution[129].  Within Ch IV is a provision limiting the drawing of money from the Treasury of the Commonwealth "except under appropriation made by law".[130]

98. The foregoing provisions are not features peculiar to Australia's constitutional arrangements.  Their origins may be traced to the constitutional struggles in England and in the American colonies by which, ultimately, the authority of the people, in the respective Houses of Parliament directly elected by the people, was successfully asserted to determine conclusively the revenue that could be raised by way of taxation.

99. In the Bill of Rights of 1688, for the purpose of "Vindicating and Asserting … ancient Rights and Liberties" of the people of England, it was enacted that "… the levying Money for or to the Use of the Crown by pretence of Prerogative without Grant of Parliament for longer time or in other manner than the same is or shall be granted is Illegal"[131].  In the Australian colonies, before Federation, this principle had been upheld as axiomatic and as an inherited part of Australian law[132].  Soon after Federation, in England, the principle was again reiterated[133].  Later still, in Re Dymond[134], Menzies J pointed out that the provisions of the Constitution, notably ss 53 and 55, reflected the parliamentary convention which[135]:

    "prevented the Lords from amending Bills which they received from the Commons dealing with aids and supplies, so as to alter, whether by increase or reduction, the amount of a rate or charge - its duration, mode of assessment, levy, collection, appropriation, or management; or the persons who pay, receive, manage, or control it; or the limits within which it is leviable."

    [131] Bill of Rights 1688 1 Will & Mar Sess 2 c 2.

    [132]Stevenson v The Queen (1865) 2 WW & A'B (L) 143 at 159; cf Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 187-188.

    [133]Bowles v Bank of England [1913] 1 Ch 57 at 84-85.

    [134](1959) 101 CLR 11.

    [135]Re Dymond (1959) 101 CLR 11 at 27-28.

100. The Australian Constitution involved a mixture of features borrowed from English and United States constitutional law[136].  The preoccupations of the founders of the Australian Constitution, in this respect, concerned four main themes:

     ·To avoid discrimination between the States, or parts of the States, in the raising of taxation[137];

     ·To provide for the case of deadlock between the House of Representatives and the Senate in the making of laws having revenue implications[138];

     ·To prevent the House of Representatives using its pre-eminence, in originating laws appropriating revenue or moneys or imposing taxation, in ways that would diminish the legitimate powers of the Senate to amend other laws; and

     ·To render the collection and expenditure of all revenue subject to law[139], and hence to judicial superintendence.

     [136]Constitution of the United States of America, Art 1, s 7 ("All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills").

     [137]Constitution, s 51(ii).

     [138]Constitution, s 57.

     [139]Through the provisions of ss 81, 82 and 83 of the Constitution: see Tape Manufacturers (1993) 176 CLR 480 at 505-506, 522; Airservices (1999) 202 CLR 133 at 260-261 [372].

101. A fear that s 55 of the Constitution might be misused to incorporate in a "law imposing taxation" provisions in some ways related to, but essentially concerned, with wider questions of policy had troubled this Court from its earliest days. In Osborne v The Commonwealth[140], Barton J described this device ("tacking") as one which, if unrestrained:

     "would … annihilate the intended powers of the Senate, who, favouring some and dissenting from the rest, would find themselves forced either to pass the entire agglomeration, perhaps including much that they considered an outrage on the interests of the States they represented; or to reject all, and thus perhaps cripple the finances of the Commonwealth." 

     His Honour pointed out that this consideration was more serious[141]:

     "when it is remembered that the sections dealing with the powers of the two Houses inter se, viz 53 and 54, contain no provisions whatever against the 'tacking' of tax Bills, and only one against the tacking of extraneous matter to an appropriation Bill, and that, the ordinary annual one. We cannot fail to remember that the Constitution designed the Senate to be a House of greater power than any ordinary second chamber."

     [140](1911) 12 CLR 321 at 353.

     [141](1911) 12 CLR 321 at 353.

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).

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].

     [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], Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ discussed the conventional constitutional concept of a tax.  Their Honours said[192]:

     "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."

     [191](1988) 165 CLR 462.

     [192](1988) 165 CLR 462 at 466-467 (footnotes omitted).

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 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]. 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.

     [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.

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].  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].  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 Commonwealth'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).

     [194](1993) 176 CLR 480.

     [195](1993) 176 CLR 480 at 504.

179. Some further reference to Air Caledonie[196] 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.

     [196](1988) 165 CLR 462.

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].

     [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 (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 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].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].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.

     [198]Harris v Caladine (1991) 172 CLR 84.

     [199]Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

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]:

     "[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."

     [200](1909) 8 CLR 330 at 357.

184. Reference was also made to what Kitto J said in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[201]:

     "[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."

     [201](1970) 123 CLR 361 at 374.

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], 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] 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] 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], and Harris[206] 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.

     [202]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

     [203](1991) 172 CLR 84.

     [204](1970) 122 CLR 69 at 91.

     [205](1982) 150 CLR 49.

     [206](1991) 172 CLR 84.

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], 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].  And as both Harris[209] and Brandy v Human Rights and Equal Opportunity Commission[210] decide, the availability and nature of a review by a court are relevant considerations.

     [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.

     [208]R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 18 per Aickin J.

     [209](1991) 172 CLR 84.

     [210](1995) 183 CLR 245.

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 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.