Procedural unfairness
39 The applicant's case that a breach of the rules of natural justice arises from conduct of Child Support which the applicant says was procedurally unfair (see [29]-[34]), faces an obvious difficulty. The decision under review is the respondent's decision under s 34(1) of the FMA Act, not Child Support's conduct, although the latter's conduct is relevant to the exercise of the respondent's discretion under s 34(1).
40 The applicant's contention is tantamount to arguing that, because Child Support's conduct was "procedurally unfair", so too must be the respondent's decision. If that be so, it would mean that the imputed unfairness attending the respondent's decision could never be remedied by the relief sought by the applicant, and would always attach to the decision.
41 In this connection, it is important to note that, save for one matter to which I will return (see [45]-[57]), the applicant does not contend that the respondent failed to comply with the rules of natural justice when making his decision. As the respondent puts the matter, the applicant was given an opportunity to be heard, and was heard.
42 The applicant accepts that the requirements of procedural fairness in an individual case are to be considered in light of the statutory regime governing the conduct complained of and the exercise of the relevant power: Kioa v West (1985) 159 CLR 550 at 614; Annetts v McCann (1990) 170 CLR 596 at 604; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. That being so, the focus of this part of the applicant's case must be the process by which the respondent made his decision, not the antecedent conduct of Child Support which forms the factual background against which the respondent's decision was made.
43 In any event, as the respondent points out, in making his decision, he appreciated that the applicant was seeking a waiver of the debt on the basis that Child Support had been at fault and was responsible for the applicant's unawareness, at least until about late March 2008, of his accumulating liability, and his unawareness, until 20 November 2012, of the facility provided by s 30AA of the CS(RC) Act to limit his liability. In that connection, I note findings (ii), (iii), (v), (vi) and (xii) quoted in [25]. In particular, I also note finding (vii) quoted in [25] that the allegations of defective administration made by the applicant had not been denied by the DHS. Further, the respondent had regard to the Ombudsman's conclusions and recommendations, as signified by findings (vi), (ix) and (xii). I accept, therefore, that the respondent appreciated the elements of the applicant's complaints of defective administration by Child Support and thus the "procedural unfairness" identified by the applicant in this part of his case.
44 For these reasons, I am not satisfied that these grounds of the applicant's case have been established. There was no breach by the respondent of the rules of natural justice as the applicant contends in this regard. Indeed, in this part of his case, the applicant seems to complain, impermissibly, about the merits of the respondent's decision rather than pertinent aspects of the respondent's decision-making process itself. Accordingly, this part of the applicant's case on procedural unfairness fails.
45 I turn now to consider the one aspect of the applicant's case which does raise a question as to whether the respondent's decision-making process did involve procedural unfairness - namely, whether the respondent failed to consider the submissions made in the Legal Aid letter.
46 In dealing with this aspect of the applicant's case, I note that the respondent accepts that the Legal Aid letter itself was not placed before him. He says, however, that, to the extent that the submissions in the Legal Aid letter had any relevant bearing on his decision, they were conveyed through other material and were taken into consideration by him. In particular, the respondent referred to the DHS submission which sought to identify and answer the matters raised in the Legal Aid letter. As I have noted, this submission was provided to Legal Aid New South Wales in a covering letter which invited comment and the provision, if desired, of additional documents to support the request for the waiver. No comments on the terms of the submission were provided. This would suggest that no issue was raised by the applicant concerning the adequacy of the summary made by DHS of the matters raised in the Legal Aid letter.
47 I accept that it would not be unreasonable for the respondent to rely on a summary of the submissions made in the Legal Aid letter. The question is whether the summary in the DHS submission failed to bring to the respondent's attention a material matter which he was bound to consider and which cannot be dismissed as insignificant or insubstantial: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 and 65-66. The respondent also submitted that, in this discourse, the concern of natural justice or procedural fairness is the avoidance of practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2000) 214 CLR 1 at [37].
48 The Legal Aid letter raised four matters. The first was headed "Lack of Procedural fairness" and concerned, essentially, the lack of correspondence from Child Support to the applicant when he was living in the United Kingdom concerning his liability for child support. Plainly, the substance of the applicant's case in that regard was before the respondent, as I have discussed. The Legal Aid letter included an allegation that it was only upon returning to Australia in 2012 that the applicant became aware that he was in arrears for child support payments. The applicant properly concedes that this statement in the letter is wrong, as is apparent from a letter written by the applicant which was placed before the respondent. He was aware of that matter in about late March 2008.
49 The Legal Aid letter did, however, contain a submission that the applicant had no positive obligation to inform Child Support of his address details in the United Kingdom. This particular submission is not stated in the DHS submission. However, at no stage has it been suggested by Child Support or anyone else that the applicant was under a positive obligation to supply his address details. In particular, there is nothing in the DHS submission that suggests that the applicant was under such an obligation or that Child Support regarded him as being under such an obligation, or that the applicant failed to comply with such an obligation. Indeed, there is no doubt that the DHS submission proceeded on the basis, and the respondent accepted (see finding in (i) quoted in [25]), that, when the applicant moved to the United Kingdom in 2000, his then child support liability ceased.
50 The respondent did reason that there was insufficient information to conclude that the applicant's own actions had not contributed to the difficulties that Child Support had in locating him in the United Kingdom. However, this part of the respondent's reasons is not based on a misapprehension that the applicant was under a positive obligation to inform Child Support of his residential details. It is plainly based on the information that was before the respondent: see paragraph 11 of the respondent's reasons quoted in [27]. I have already commented on that finding: see [33].
51 Further, there is nothing in the respondent's reasons to suggest that he otherwise proceeded on the erroneous view that the applicant was under a positive obligation to inform Child Support of his address details in the United Kingdom. Accordingly, the fact that this submission in the Legal Aid letter was not specifically identified in the DHS submission or otherwise brought to the respondent's attention, is without significance. No practical injustice has been shown.
52 The second matter in the Legal Aid letter was headed "UNCRAM". This is a reference to the Convention. In this part of the Legal Aid letter, the submission was that, under reg 31 of the Child Support (Registration and Collection) (Overseas Maintenance Obligations) Regulations 2000 (Cth), the only jurisdiction possessed by courts in the United Kingdom was to enforce the administrative assessment made under the CS(A) Act, not to determine the amount of maintenance to be paid by the applicant. This was so notwithstanding Article 6 of the Convention which specifically provides that the law applicable to any action or proceeding in the receiving State would be the law of the State of the respondent (here, United Kingdom law), including its private international law. The submission advanced in the Legal Aid letter was that the United Kingdom courts had exceeded their authority in making the orders they did and that the applicant should not be held responsible for the fact that, under those orders, a determination was made for maintenance in an amount less than the administrative assessment that had been made in Australia. This argument is somewhat difficult to understand, but it was accurately recorded in the DHS submission and placed before the respondent.
53 The third matter in the Legal Aid letter was headed "Proceedings instituted under UK law". The essence of this submission was that, because of the proceedings in the United Kingdom, the applicant believed that the administrative assessment under the CS(A) Act was no longer in force. This submission is difficult to reconcile with the applicant's case that he was not aware of the assessment made in September 2000 until receiving correspondence from Child Support in about late March 2008. Nevertheless the submission was accurately recorded in the DHS submission and placed before the respondent.
54 The fourth matter in the Legal Aid letter was headed "Section 30AA of the Child Support (Registration and Collection) Act 1989". The submission advanced in the Legal Aid letter under this heading is difficult to understand. It referred to the introduction of s 30AA into the CS(RC) Act. It also referred, by way of background, to certain statements made in the Explanatory Memorandum, Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007 (Cth). The gravamen of the submission appears to be based on a misapprehension that it was Child Support's view that the applicant was under a positive obligation to register the orders for maintenance made in the United Kingdom. The submission in the Legal Aid letter also raised an argument that if the proceedings in the United Kingdom were truly "enforcement" proceedings, the orders made in the United Kingdom could not create a "new" registrable liability for the purposes of s 30AA.
55 The DHS submission did not articulate these particular arguments, although it did deal with the introduction and effect of s 30AA.
56 It is not clear on the materials before me that Child Support has ever raised an argument that the applicant was under a positive obligation to register, pursuant to s 30AA of the CS(RC) Act, his liability for maintenance under the court orders made in the United Kingdom. Certainly that argument was not raised before the respondent and the respondent did not assess the applicant's request for a waiver on the basis that the applicant was under such an obligation. Indeed, the applicant's complaint, as the respondent comprehended it, was that he had not been informed of the facility provided by s 30AA and that this failure was an important element of the defective administration by Child Support that stood as one of the reasons why the debt should be waived.
57 Thus, the submission articulated in the Legal Aid letter was not germane to the respondent's consideration of the reasons why the applicant's debt should be waived. It seems that the argument ultimately advanced to the respondent was that Child Support should have done more to inform the applicant of the facility provided by s 30AA. That is certainly the case advanced by the applicant in the present proceeding. There is nothing in the respondent's reasons to suggest that his decision was informed by a misapprehension that the applicant was under a positive obligation to register the maintenance liability created by the orders made in the United Kingdom. Therefore, the omission of the DHS submission to convey the particular argument in the Legal Aid letter is without significance. No practical injustice has been shown.
58 For these reasons, this part of the applicant's case on procedural unfairness also fails.