FEDERAL COURT OF AUSTRALIA

Flanagan v Australian Prudential Regulation Authority [2004] FCA 1321

SUPERANNUATION – early release of preserved benefits in a regulated fund on compassionate grounds – applicant’s residence and two investment properties subject to a charge in favour of the Child Support Agency – whether applicant’s circumstances are ‘consistent with’ the early release of benefits to make a payment on a loan to prevent a mortgagee exercising a power of sale over a person’s principal place of residence – Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 6.19A(1)(b), (f)

WORDS & PHRASES – ‘consistent with’

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Australian Prudential Regulation Authority Act 1998 (Cth) ss 7, 13

Child Support (Assessment) Act 1989 (Cth) ss 77, 79, 99, 110, 113

Child Support (Registration and Collection) Act 1988 (Cth) ss 17, 24, 30, 67, 105, 113

Family Law Act 1975 (Cth) ss 109A, 123

Judiciary Act 1903 (Cth) s 39B

Superannuation Industry (Supervision) Act 1993 (Cth) ss 6, 10, 30, 31, 353

Family Law Rules 2004 (Cth) Ch 20

Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 6.01, 6.18, 6.19A, Sch 1

Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 cited

X v Commonwealth (1999) 200 CLR 177 applied

JOHN EDWARD FLANAGAN v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY & ANOR

NSD 1141 of 2004

SACKVILLE J

SYDNEY

15 OCTOBER 2004

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     The applicant seeks judicial review of a decision made by the first respondent (‘APRA’) on 9 June 2004.  APRA refused the applicant’s request to release to him a proportion of the preserved benefits in the IOOF Lifetrack Superannuation Fund (‘the Fund’) to which he is entitled. 

2                     APRA is established by s 7 of the Australian Prudential Regulation Authority Act 1998 (Cth).  It is a body corporate entitled to sue and be sued in its own name: s 13(1).  The second respondent is the Review Officer who made the decision of which the applicant complains. 

3                     The applicant requested APRA to release his preserved benefits in the Fund in order to discharge a debt of $10,243.55 said to be due by him to the Child Support Agency.  APRA refused to release the benefits on the ground that the case did not come within the circumstances specified in the Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘SIS Regulations’) for early release of superannuation benefits on compassionate grounds.

4                     The applicant, who was not legally represented in the proceedings, says that APRA made an error of law in interpreting the SIS Regulations, in particular reg 6.19A(1)(f), which authorises APRA to determine that preserved benefits may be released in certain circumstances.  I take it that the applicant relies on s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’), which allows a person aggrieved by an administrative decision made under an enactment to apply for an order of review on the ground ‘that the making of the decision involved an error of law’.  Alternatively, the applicant says that the decision was affected by a jurisdictional error and that he is entitled to relief pursuant to s 39B(1) of the Judiciary Act 1903 (Cth).

THE STATUTORY FRAMEWORK

The SIS Act and the SIS Regulations

5                     The object of Part 3 of the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SIS Act’) is to provide for a system of prescribed standards applicable to the operation of regulated superannuation funds: s 30.  APRA is responsible for the administration of Part 3 of the SIS Act: s 6(1)(b). 

6                     Section 31 of the SIS Act, which is within Part 3, provides as follows:

‘(1)      The regulations may prescribed standards applicable to the operation of regulated superannuation funds (funds)…

(2)       The standards that may be prescribed include, but are not limited to, standards relating to the following matters:

…

(e)       the form in which benefits may be provided by funds;

…

(g)       the preservation of benefits arising directly or indirectly from amounts contributed to funds;

(h)       the payment by funds of benefits arising directly or indirectly from amounts contributed to the funds;

 …’

7                     Section 353(1) confers power on the Governor-General to make regulations required or permitted by the SIS Act to be prescribed, or that are necessary or convenient for giving effect to the SIS Act.

8                     Part 6 of the SIS Regulations provides for ‘Payment standards’.  Division 6.3 of Part 6 deals with the ‘Cashing of Benefits’, while Subdivision 6.3.1 (regs 6.18-6.22B) applies to regulated superannuation funds.  The Fund is a regulated superannuation fund.

9                     Regulation 6.18 provides as follows:

‘(1)      A member’s preserved benefits in a regulated superannuation fund may be cashed on or after the satisfaction by the member of a condition of release.

(2)       The amount of preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the sum of:

(a)       the amount of preserved benefits of the member that had accrued at the time when the member satisfied the condition of release; and

(b)       …

(3)       … the form in which preserved benefits may be cashed under this regulation is:

(a)       the form (if any) specified in the cashing restriction for preserved benefits set out in Schedule 1 in relation to the relevant condition of release; or

(b)       …’

10                  Regulation 6.01 defines ‘condition of release’ to mean:

‘a condition of release specified in Column 2 of Schedule 1, and a member of a fund is taken to have satisfied a condition of release if the event specified in that condition has occurred in relation to the member.’

I extract the relevant portion of Schedule 1 in [13] below.

11                  Regulation 6.19A provides for release of benefits on what the heading describes as ‘compassionate grounds,’ as follows:

‘(1)      A person may apply to the Regulator for a determination that an amount of the person’s preserved benefits … in a superannuation entity may be released on the ground that it is required:

 (a)      …

(b)       to enable the person to make a payment on a loan, to prevent:

(i)        foreclosure of a mortgage on the person’s principal place of residence; or

(ii)       exercise by the mortgagee of an express, or statutory, power of sale over the person’s principal place of residence; or

…

(f)        to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines.

(2)       The Regulator must determine, in writing, that the person has satisfied, for the purposes of subregulation 6.18(1) … a condition of release on a compassionate ground if the Regulator is satisfied that:

(a)       the release is required on a ground mentioned in subregulation (1); and

(b)       the person does not have the financial capacity to meet an expense arising from that ground.

…

(5)       The Regulator cannot be satisfied that money is required on the ground mentioned in paragraph (1)(b) unless the person gives to the Regulator a written statement from the mortgagee that:

(a)       payment of an amount is overdue; and

(b)       if the person fails to pay the amount, the mortgagee will:

(i)        foreclose the mortgage on the person’s principal place of residence; or

(ii)       exercise its express, or statutory, power of sale over the person’s principal place of residence.

(6)       A statement under subregulation (5) must include the following information:

(a)       the amount that is equal to 3 months’ repayments under the mortgage; and

 (b)      the amount that is 12 months’ interest on the outstanding balance of the loan at the time the statement is made.’

12                  The ‘Regulator’ is APRA: SIS Act, s 10.

13                  Schedule 1 to the SIS Regulations includes Item 107, as follows:

Child Maintenance Obligations

14                  Although I was referred to some provisions, I was not taken in detail to the legislation governing the creation and enforcement of child maintenance obligations.  However, the relevant provisions appear to be contained in the Child Support (Assessment) Act 1989 (Cth) (‘Assessment Act’), the Child Support (Registration and Collection) Act 1988 (Cth) (‘Registration Act’), the Family Law Act 1975 (Cth) (‘Family Law Act’) and the Family Law Rules 2004 (Cth) (‘Family Law Rules’).

15                  Part 4 of the Assessment Act establishes a procedure for the administrative assessment of ‘child support’, defined to mean financial support determined under the Assessment Act (s 5).  Section 77 of the Assessment Act provides that an assessment by the Registrar of the rate of child support payable for a child or children constitutes the amount of the child support payable by the liable parent to the carer of the child or children.  The amount of child support so assessed is a debt due and payable by the liable parent to the carer entitled to child support and may be sued for in a court having jurisdiction: s 79.  Each court of summary jurisdiction of each State is invested with federal jurisdiction in relation to matters arising under the Assessment Act: s 99(2).  If a liable parent or a carer entitled to child support is aggrieved by an administrative assessment, he or she may, subject to certain preconditions, appeal to a court having jurisdiction under the Assessment Act: s 110(1).

16                  Section 17(2) of the Registration Act provides that a liability is a ‘registrable maintenance liability’ if it arises under an assessment made under the Assessment Act.  Where the Child Support Registrar is notified of the existence of a registrable maintenance liability, the Registrar is to register the liability by entering particulars thereof in the Child Support Register: s 24(1).  If a registrable maintenance liability is registered under the Registration Act, amounts payable under the child support assessment under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register: s 30(1).  Section 67 of the Registration Act provides for penalties to be imposed in respect of child support debts that remain unpaid.

17                  Debts due to the Commonwealth under the Registration Act may be sued for and recovered by the Registrar suing in her or his official name and may be recovered in a court having jurisdiction under the Assessment Act: s 113(1).  Section 104(2) of the Registration Act provides that each court of summary jurisdiction of each State is invested with federal jurisdiction in relation to matters arising under the Registration Act.  Section 105(1) of the Registration Act provides that the Family Law Act and the standard Rules of Court apply to proceedings under the Registration Act as if the proceedings were proceedings under the Family Law Act, other than proceedings under s 113(1). 

18                  The Family Law Act, s 109A(1), provides that the power of the Judges to make Rules of Court under s 123 extends to making Rules of Court for or in relation to the enforcement by the court of the Registration Act or the Assessment Act.  The power includes providing for a variety of orders in respect of a person who fails to pay an amount payable under a registered maintenance liability pursuant to the Registration Act or the Assessment Act: s 109A(2)(c)(iv).  The orders specified include the issue of a warrant of execution against property of a person and the making of an order for the sequestration and, if necessary, the sale of property of that person: s 109A(3)(b), (d).

19                       Chapter 20 of the Family Law Rules provides for the enforcement of financial orders and obligations.  Chapter 20 applies to a person seeking to enforce payment of a ‘child support liability’, that is, an amount owing under the Assessment Act or the Registration Act that may be registered for collection by the Child Support Agency: r 20.01(2)(d); Dictionary.  (The Child Support Agency is that part of the Department of Family and Community Services known by that name that administers the Assessment Act and the Registration Act: Family Law Rules, Dictionary.)  Where the obligation is a child support liability, the obligation may be enforced by a person entitled to do so under the Registration Act: r 20.04(d). 

20                  An obligation to pay money may be enforced by a variety of procedures, including an Enforcement Warrant under which real property or personal property may be seized and sold: r 20.05(a).  Enforcement Warrants are provided for by Part 20.3 of the Family Law Rules.  An Enforcement Warrant remains in force for 12 months from the date it is issued: r 20.17.  An enforcement officer must seize or sell property of the person subject to the liability in the sequence that the enforcement officer considers is best for promptly enforcing the Warrant, avoiding undue expense or delay and minimising hardship to the payer and any other person affected: r 20.18(1). 

21                  The enforcement officer must sell seized property quickly, having regard to the parties’ interests and the desirability of a beneficial sale of the property: r 20.18(1)(e)(i).  An enforcement officer may, when enforcing a Warrant, enter any real property that is the subject of the Warrant, using such force as may be necessary and eject from the property any person who is not lawfully entitled to be on the property: r 20.18(2).  Property seized under an Enforcement Warrant remains the subject of the Warrant unless it is released by full payment of the total amount owing, the sale of the property, an order of the court or the consent of the payee: r 20.20(1).  A payee or enforcement officer may apply for orders that real property subject to an Enforcement Warrant be transferred to a trustee, that a party sign all documents necessary for the transfer and that provision be made for the sale of the property: r 20.24(1). 

the facts

22                  The applicant, who is aged 53, is a member of the Fund.  As at 31 December 2003 the applicant’s preserved benefit in the Fund was $19, 826.86. 

23                  The applicant is the registered proprietor of three properties, all located in Thirroul.  He is the co-owner of one property, holding a half share as tenant in common with another person (his brother).  He is, however, the sole registered proprietor of the other two properties. 

24                  The applicant says that the co-owned property is his place of residence.  That property is not subject to any registered mortgage.  Each of the other properties is subject to a registered mortgage in favour of a bank.

25                  On 26 April 2004, the applicant applied to APRA for the early release of superannuation benefits from the Fund for what was said to be compassionate reasons.  In his letter to APRA, the applicant said that court action was pending against him for outstanding child support debts.

26                  On 5 May 2004, a delegate of APRA informed the applicant that his circumstances did not meet the statutory criteria for the release of preserved benefits in a regulated superannuation fund. 

27                  On the same day, 5 May 2004, an application by the Child Support Registrar against the applicant was heard by the Local Court at Sydney.  The Court declared that:

‘there is owing to the Commonwealth in respect of amounts owing under registered maintenance liabilities of the [applicant] the sum of $10,243.55.’

The Court made the following orders:

‘1.     That the [applicant] pay to the Child Support Registrar the sum of $10,243.55 (being $6,850.74 in arrears of child support, $3,392.81 in late payment penalties). 

2.      That the amounts payable in Orders 1 and 2 herein [sic] be paid to the office of the Child Support Registrar on or before 2 July 2004.

3.      That the [applicant’s] interest in the real property detailed below be charged with the debt set out in Orders 1 and 2 hereof, until that debt has been paid in full …

4.            That an enforcement warrant issue as attached hereto …’

The orders set out the details of the three properties of which the applicant is proprietor.  The orders do not disclose the source of power to make the charging order.

28                  The Enforcement Warrant attached to the orders is in the form found in the Family Law Rules (Form 16).  It directs the Marshal or other authorised enforcement officer to seize the real or personal property of the applicant as will satisfy the total amount due.  The three properties of which the applicant is the registered proprietor are listed in the Enforcement Warrant.

29                  Following the making of these orders, the Child Support Agency, as caveator, lodged a caveat against the title of each of the three properties referred to in the orders of the Local Court.  Each caveat claims an equitable interest in the property by virtue of the orders of the Local Court made on 5 May 2004.  The caveats have been duly noted on the title to each property.

30                  It appears that the applicant filed an appeal from the orders made by the Local Court on 5 May 2004.  The appeal was dismissed by the Family Court on 2 August 2004. 

31                  On 1 June 2004, the applicant requested APRA to reassess his application for an early release of superannuation benefits.  The ‘compassionate ground’ upon which he relied was:

‘Funding to buy time for a member where a mortgagee has threatened foreclosure on the member’s home’.

The letter went on as follows:

‘Although I am not threatened by the mortgagee, I am threatened in the same way by the Child Support Agency.  Since making the application on 29 April 2004, I have had court orders made on 5 May 2004.  These are enforcement orders.  If I do not pay an amount of $10,243.55 by 2 July 2004, the Child Support Agency will sell property that I own …

I do not have the funds to pay the amount requested.’

32                  On 9 June 2004, APRA rejected the applicant’s request for early release of the moneys from the Fund.  APRA’s letter notifying the applicant of the decision pointed out that it could approve an early release of superannuation benefits only on the particular compassionate grounds set out in reg 6.19A(1).  The Review Officer gave the following explanation for the decision:

‘ … the insertion of [reg 6.19A in 1997] was intended to bring about a tightening of the criteria for release of benefits, and … the discretion provided by [reg] 6.19A(1)(f) was (consistently with that intention) intended to be quite “qualified,” to cover cases that “almost fall within the boundaries of the objective criteria” but do not “strictly meet the letter” of those criteria.

Release of benefits to pay an outstanding personal debt is not a release which could be characterised as being consistent with any of the permitted grounds of release in [reg] 6.19A(1)(a) to (e). 

The only potential link here and [reg] 6.19A(1)(b) is that the judgement may include seizure of assets (including vehicles, chattels or real property) and that they might be sold in execution of the judgment debt.  But the paragraph (b) ground is quite limited.  It does not apply to prevent people losing their houses in all the circumstances in which people can lose their houses, but only where there is arrears on a loan by a mortgagee.  People can and do lose their houses because they go bankrupt, or because they run up debts which result in court judgments which are registered against the property.  It must be inferred that paragraph (b) is limited to preventing loss of principal residences where there are loan arrears, by a registered mortgagee, to the extent that foreclosure is threatened, and where release of an amount up to (but not exceeding) the limit set by Item 107 will prevent the foreclosure.’  (Emphasis in original.)

33                  The applicant sought review of APRA’s decision in the Administrative Appeals Tribunal.  However, the Tribunal, in a decision made on 19 July 2004, dismissed the application for want of jurisdiction: [2004] AATA 764.

34                  The present proceedings were instituted on 23 July 2004.

SUBMISSIONS

35                  The applicant submitted that APRA had misconstrued reg 6.19A(1)(f) of the SIS Regulations by giving it too narrow an application.  He contended that par (f) was intended to introduce greater flexibility in the arrangements for release of preserved benefits.  He asserted, without developing the argument, that release of his benefits from the Fund to discharge his liability to the Child Support Agency was consistent with the ground mentioned in reg 6.19A(1)(b).

36                  The applicant pointed out that the current Guidelines for Early Release of Benefits on Compassionate Grounds (‘Guidelines’) issued by APRA indicates (at par F20) that release of preserved benefits is consistent with reg 6.19A(1)(b) where the moneys are needed to pay arrears of local council rates in order to prevent the council exercising its statutory power to sell the property.  The applicant submitted that if APRA was prepared to regard a statutory charge for council rates as consistent with a mortgage for a house loan for the purposes of reg 6.19A(1)(f), it should also be prepared to regard a charge created by a Local Court over the principal residence in the same light.

37                  Ms Allars accepted that APRA had made an administrative decision under enactment: ADJR Act, s 3(1).  Ms Allars also acknowledged in her oral argument that it is not easy to ascertain precisely why the Review Officer concluded that release of the applicant’s preserved benefits would ‘not be consistent with [the] ground mentioned in [reg 6.19A(1)(b)]’, within the meaning of reg 6.19A(1)(f).  As I understood Ms Allars’ argument, however, she interpreted the Review Officer as relying on three independent grounds for rejecting the applicant’s request. 

38                  First, reg 6.19A(1)(b) is limited to the case where a person is obliged to make a payment on a loan by a mortgagee.  The amount due by the applicant to the Child Support Registrar is not in respect of a loan by a mortgagee, but is owed by virtue of the operation of the Assessment Act and the Registration Act.  The release of funds to the applicant would not be consistent with the ground in reg 6.19A(1)(b) unless the release is required to enable the applicant to make a payment on a loan to prevent (relevantly) exercise by the mortgagee of a power of sale.  Since the Child Support Agency had not provided a loan to the applicant and since the Agency, in any event, was not a mortgagee, release of the funds sought by the applicant could not be said to be consistent with the ground specified in reg 6.19A(1)(b). 

39                  Secondly, reg 6.19A(1)(b) does not permit a release of funds unless the person applying for the release has provided a written statement from the mortgagee complying with the requirements of reg 6.19A(5) and (6).  The statement must therefore specify the amount that is overdue and state that the mortgagee, if the amount overdue is not paid, will exercise a power of sale over the person’s principal place of residence.  A release of funds cannot be consistent with the ground in reg 6.19A(1)(b) unless the person concerned complies with the preconditions specified in reg 6.19A(5) and (6), or at least provides evidence that foreclosure or exercise of the power of sale over the person’s residence is imminent.  Since there was no material before the Review Officer that the chargee (the Child Support Agency) had provided the necessary statement or that foreclosure or sale of the applicant’s residence was imminent, reg 6.19A(1)(f) could not be satisfied.

40                  Thirdly, Item 107 of Schedule 1 to the SIS Regulations establishes a ‘cashing restriction’ applicable to the ground specified in reg 6.19A(1)(b).  The effect of Item 107 is that the release of funds must comprise a lump sum not exceeding an amount equal to the sum of three months’ repayments and twelve months’ interest on the outstanding balance of the loan.  There was no material before the Review Officer that enabled him to be satisfied that the amount requested by the applicant did not exceed the cashing restriction specified in Item 107.

41                  Ms Allars submitted that each of these grounds independently justified the Review Officer’s decision and that none of them disclosed any error of law.  On the contrary, the Review Officer had correctly interpreted reg 6.19A.  

REASONING

42                  Regulation 6.19A was introduced into the SIS Regulation by the Superannuation Industry (Supervision) Regulations (Amendment) 1997 (No 152 of 1997).  Regulation 6.19A(1)(f) was inserted shortly thereafter by the Superannuation Industry (Supervision) Regulations (Amendment) 1997 (No 343 of 1997) (‘SIS (Amendment) Regulation’).

43                  The Explanatory Statement to the SIS (Amendment) Regulation states as follows:

‘At present, superannuation benefits are generally required to be “preserved” in the superannuation system until retirement on or after age 55.  However, subject to the governing rules of the superannuation fund, early release of “preserved” benefits is permitted under the Principal Regulations in certain restricted circumstances including severe financial hardship or “compassionate” grounds.

The purpose of the Regulations is to vary the original measures announced in the 1997-98 Budget to tighten and streamline the administration of the early release of superannuation benefits.

The Regulations:

…

*          introduce flexibility in the arrangements for the release of benefits on “compassionate” grounds, tightly linked to the defined criteria announced in the 1997-98 Budget (Regulation 3);

…

The Regulations are described in detail in the attachment.

ATTACHMENT

…

Regulation 3 – Regulation 6.19A (Release of benefits on compassionate grounds)

Regulation 6.19A defines the criteria for the release of benefits on “compassionate” grounds as announced in the 1997-98 Budget.

…

Subregulation 3.2 inserts a new paragraph 6.19A(1)(f) to provide the Insurance and Superannuation Commissioner with a qualified discretion in relation to “compassionate” grounds to approve cases that almost fall within the boundaries of the objective criteria in paragraphs 6.19A(1)(a) to [(e)] but at present cannot be approved because they do not strictly meet the letter of the criteria.’

44                  The Explanatory Memorandum indicates that reg 6.19A(1)(f) is designed to ‘introduce flexibility in the arrangements for the release of benefits on “compassionate grounds”.’  However, the discretion (now conferred on APRA rather than the Insurance and Superannuation Commissioner) is a ‘qualified one’.  The Explanatory Memorandum suggests that APRA is intended to have a discretion to approve applications that ‘almost fall within the boundaries of the criteria stated’ in reg 6.19A(1), but that cannot be approved because they ‘do not meet the letter of the criteria’.

45                  The drafter of reg 6.19A(1)(f) has chosen to implement the general objective by providing that preserved benefits may be released if they are required to meet expenses in cases, other than those specified in subparas (a) to (e), where the release is ‘consistent with’ a ground mentioned in one of these subparagraphs.  The Macquarie Dictionary definition of ‘consistent’ is

‘1.     agreeing or accordant, compatible; not self-opposed or self-contradictory;

2.      consistently adhering to the same principles, course etc …’

46                  Clearly enough, subpar (f) does not authorise release of preserved benefits in circumstances that are incompatible with the specific requirements of subpar (b) (assuming the latter to be the only relevant ground mentioned in reg 6.19A(1)): cf Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185, at 192-193, per Clarke JA.  For example, subpar (f) would plainly not authorise the release of preserved benefits to enable a person to make payments to a mortgagee of real property which is used for non-residential purposes.  Subparagraph (b) is directed to a particular situation, namely where a payment is needed to prevent loss of a person’s principal place of residence by a secured creditor foreclosing or exercising a power of sale.  It is not consistent with subpar (b) to authorise the release of preserved benefits for a completely different purpose, for example to enable payments to be made to prevent the loss of an investment property or simply to repay a loan where there is no imminent threat of enforcement action by the secured creditor.

47                  Even so, there is a certain elasticity about the expression ‘consistent with’.  The examples I have given suggest however, that subpar (f) contemplates that it is necessary to identify the criteria specified in the other subparagraphs of reg 6.19A(1) that are essential, in the sense that a failure to satisfy them will take the case outside the hardship intended to be ameliorated by the particular ‘compassionate’ ground.  They are to be distinguished from criteria that are inessential, in the sense that a failure to satisfy them will not take the case outside that hardship.  No doubt this involves what might be described, in another context, as a process of characterising the statutory criteria by reference to the apparent objective of each specific compassionate ground.

48                  My present (although not concluded) view is that the fact that the applicant never received a loan from the Child Support Agency or the Commonwealth and did not execute a mortgage in favour of either of them, does not necessarily mean that release of his preserved benefits from the Fund is not ‘consistent with’ the ground mentioned in subpar (b).  The hardship of losing one’s principal place of residence by a secured creditor exercising a power of sale may be present even though the indebtedness arises by force of statute and even though the security over the property is created by court order rather than by a mortgage executed inter partes. Accordingly, I am inclined to think that if the following four factors were present in this case, release of the applicant’s preserved benefits would be consistent with the ground mentioned in subpar (b).  The factors are these:

(i)        the applicant is indebted to the Agency (or the Commonwealth) by the operation of the Assessment Act and the Registration Act;

(ii)       the indebtedness is secured by a valid charge created by order of the Local Court over the applicant’s principal place of residence in favour of the Agency and that charge carries with it a power to sell the property in the event of default;

(iii)       the Agency has stated unequivocally that by reason of the applicant’s failure to pay an overdue amount it is taking steps to exercise its power of sale as chargee of the property; and

(iv)      release of the applicant’s preserved benefits is needed to enable him to pay off his indebtedness to the Agency and thereby prevent the Agency exercising its power of sale.

49                  In these hypothetical circumstances, the applicant would be faced with the loss of his residence because a secured creditor is about to exercise a power of sale which has been enlivened by the applicant’s default in discharging his indebtedness.  The fact that the security is not strictly a ‘mortgage’ and that the indebtedness is not strictly a ‘loan’ does not seem to me to take the case outside the essential features of the ground identified in subpar (b).  It would follow, if this reasoning is sound, that the Guidelines correctly contemplate that reg 6.19A(1)(f) can apply where a local council proposes to enforce its statutory power to sell a property to recover arrears of rates (subject to the applicant satisfying any other applicable requirements).

50                  This analysis, however, exposes the difficulty facing the applicant.  I leave to one side the question of whether or not the applicant had to comply with the formal requirements of reg 6.19A(5) and (6) (as Ms Allars contended he did) before he could rely on reg 6.19A(1)(f).  Be that as it may, there was simply no material before the Review Officer to suggest that release of the applicant’s preserved benefits was required to enable him to discharge the whole or part of his indebtedness to the Agency so as to prevent the Agency exercising a power of sale over the applicant’s residence.  The Local Court orders, if valid, created charges over three properties, only one of which is the applicant’s principal place of residence.  Any power of sale available to the Agency (whether by virtue of the charges themselves or by virtue of the operation of the Enforcement Warrant) could be exercised by it in relation to any one of the three properties.  There was nothing before the Review Officer to indicate that the Agency intended to sell the applicant’s residence, either immediately or in the future.  It is true, as the applicant pointed out, that only his residence is unencumbered (other than by the Agency’s caveat).  However, the applicant is not the sole proprietor of the residence, but a co-owner.  In view of the obvious difficulties of selling a co-owner’s interest in a residence, it might be thought unlikely that the Agency would attempt to do so.  (See, too, r 20.18(1)(a)(ii) of the Family Law Rules, requiring an enforcement officer executing an Enforcement Warrant to minimise hardship to a payer.)

51                  It may be that if the Agency makes it clear that it intends immediately to exercise its power of sale over the applicant’s interest in his principal place of residence, the applicant would come closer to satisfying the requirements of reg 6.19A(1)(f).  An issue might then arise as to the significance of Item 107 in Schedule 1 to the SIS Regulations and the possible difficulty facing the applicant in satisfying subpar (b) of Item 107.  But it is not necessary to address that question in the present case.

52                  I make two further points.  First, although the reasons of the Review Officer are cryptic and by no means clear, I construe them as rejecting the applicant’s request on the ground I have identified.  The Review Officer pointed out that reg 6.19A(1)(b) is limited to preventing the loss of a principal residence where foreclosure is threatened by a mortgagee.  (This statement is accurate if the reference to foreclosure is read, as I think it must be, as including the exercise of a power of sale by the mortgagee.)  The Review Officer also pointed out that release of benefits to pay an outstanding debt is not a release that can be characterised as consistent with the ground in subpar (b). 

53                  A fair reading of these observations suggests that the Review Officer considered that the applicant could not satisfy subpar (f) because there was nothing to suggest that the Agency was about to foreclose on (or exercise a power of sale over) the applicant’s principal place of residence.  In so concluding, I do not think that he misconstrued reg 6.19A(1)(f).  The Review Officer correctly construed subpar (f) as requiring the applicant to present some material to indicate that the Agency was about to foreclose on or exercise a power of sale over the applicant’s principal place of residence.  The applicant failed because there was nothing to indicate that his residence was at imminent risk of enforcement action by the Agency.

54                  Even if the Review Officer’s reasons cannot be read this way, I would not grant relief to the applicant.  A possible reading of the reasons (although not the one I would adopt) is that the Review Officer rejected the applicant’s request simply because the applicant had not received a loan from a mortgagee but had incurred a liability to the by operation of the Assessment Act and the Registration Act.  As I have indicated, I am inclined to think that this ground would not of itself prevent the applicant from satisfying reg 6.19A(1)(f).  But if this was the Review Officer’s sole ground for refusing the request, any error of law would have been immaterial, because the Review Officer would have been bound to reject the applicant’s request in any event.  There has been no suggestion that the applicant could have produced material showing that the Agency in fact intends to sell his interest in his residence, much less that a sale is imminent.  Indeed if it matters, the evidence strongly suggest that no such material was available to the applicant.  In other words, the Review Officer could not have reached a different result even if no error of law had been made: X v Commonwealth (1999) 200 CLR 177, at 210-211 [12], per Gummow and Hayne JJ, with whom Gleeson CJ and Callinan J agreed.

55                  Secondly, I have proceeded on the assumption, not disputed by Ms Allars, that the Agency has an interest as chargee of the applicant’s residence by virtue of the orders of the Local Court made on 5 May 2004.  It also seems to have been assumed that the chargee would have a power of sale in the event of default by the applicant.  Because the point was not argued, it is neither necessary nor appropriate to pursue it.  I merely observe that the power of the Local Court to make such an order is not identified in the orders themselves and there appears to be no explicit provision in the Assessment Act, the Registration Act, the Family Law Act or the Family Law Rules authorising the Local Court to create a charge (as distinct from authorising the issue of an Enforcement Warrant).  However, I do not rule out the possibility that there are general powers in the legislation that can be construed as empowering a Local Court to make a charging order of the kind made in the present case, although whether such a charge would carry with it a power of sale is another matter.

THE GUIDELINES

56                  The application filed in this Court claims that the Review Officer did not follow APRA’s own Guidelines.  This appears to be a reference to the fact that the Guidelines contemplate that reg 6.19A(1)(f) may be satisfied where a local council seeks to exercise a statutory power of sale in respect of arrears of rates.  The applicant submitted that the circumstances of his case were relevantly indistinguishable.

57                  The Review Officer was not bound to follow the Guidelines.  In any event, his reasoning did not contradict the Guidelines.  At most, his failure to reason by analogy from the council example may indicate that he interpreted reg 6.19A(1)(f) too narrowly.  I have already addressed that possibility and concluded that it does not assist the applicant.

CONCLUSION

58                  The application must be dismissed.  The applicant must pay the respondents’ costs.

Associate:

Dated:              15 October 2004