FEDERAL COURT OF AUSTRALIA

Carmody v Superannuation Complaints Tribunal [2020] FCA 291

ORDERS

THE COURT ORDERS THAT:

1.    The determination of the Superannuation Complaints Tribunal dated 21 June 2018 be affirmed.

2.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal on questions of law from a determination of the Superannuation Complaints Tribunal (Tribunal) pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (SRC Act). The determination in question was a Review Determination of the Tribunal dated 21 June 2018. This determination affirmed an earlier decision of Commonwealth Superannuation Corporation (Trustee) to comply with various notices issued by the Child Support Agency relating to the applicant’s invalidity pension, which was a determination made on the basis that it was fair and reasonable for the Trustee to do so.

2    The applicant in this matter is Mr David Joseph Carmody. I understand that his mother, Ms Helen Carmody, holds a power of attorney from Mr Carmody and has assisted him in relation to this litigation and his interactions with the Trustee.

3    The original named respondent in this appeal was the Tribunal. On 20 July 2018, the Tribunal filed a Form 29 Submitting Notice, submitting to any order of the Court save as to costs.

4    In Orders dated 24 April 2019, I noted that the Trustee was a party before the Tribunal, and I required the applicant to serve on the Trustee a copy of the present notice of appeal, his submissions filed on 21 August 2018 and a copy of my Orders. On 24 May 2019 the Trustee filed an interlocutory application seeking to be joined as the second respondent to these proceedings. The applicant did not oppose the application for joinder. On 13 June 2019 I ordered that the Trustee be joined as the second respondent.

5    In summary, Mr Carmody acknowledges that he has incurred a debt in respect of child support, but objects to the compliance by the Trustee with the notices issued by the Child Support Agency. He claims that in so doing, the Trustee contravened various legislative provisions, and to that extent, the Tribunal erred in finding that the decision of the Trustee to comply with the notices was fair and reasonable.

Background

6    The background to this matter is set out in the Trustee’s response dated 17 July 2017 to the s 17 of the SRC Act notice, the Tribunal’s Review Determination and Reasons for Determination dated 21 June 2018 and the submissions of the parties both in earlier proceedings and this appeal. Material facts can be summarised as follows.

7    The applicant was born on 20 October 1972. The applicant joined the Royal Australian Air Force (RAAF) on 23 November 1989. On 17 December 1992, the applicant suffered a severe traumatic brain injury while serving in the RAAF.

8    On 31 March 1994 the applicant was medically discharged from the Australian Defence Force. As a result of his discharge and s 6 of the Military Superannuation and Benefits Act 1991 (Cth) (MSBA), the applicant ceased to be a member of the Military Superannuation & Benefits Scheme (MSBS) of which the Commonwealth Superannuation Corporation is the trustee.

9    After a period of assessment, Mr Carmody was determined to have a Class A incapacity for civilian employment, which is the highest level of incapacity (60% or more). Pursuant to rule 27(1)(a) in the Schedule to the Military Superannuation and Benefits Trust Deed 1991 (Cth) (MSBS Trust Deed), Mr Carmody became entitled to his “member benefit” from the MSBS fund as a lump sum. Pursuant to rule 27(1)(b) of the MSBS Trust Deed, his “employer benefit” from the MSBS fund was converted to a pension, known as an invalidity pension.

10    At all material times, Mr Carmody has been in receipt of two pensions. The first pension emanated from his former employer, the Department of Defence - RAAF, and was a “special rate of pension” that the applicant claims is payable under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (VEA). I note that, in its decision, the Tribunal referred to this pension as “pension 1”. Mr Carmody has referred to pension 1 in his submissions as the “Special Rate of Pension” or the “TPI pension”. The Trustee makes no reference to pension 1 in its submissions. The second pension was the invalidity pension payable from the MSBS. I note that, in its decision, the Tribunal referred to this pension as “pension 2”. Mr Carmody has referred to pension 2 in his submissions as the “Invalidity Benefits”, while the Trustee has referred to pension 2 as the “invalidity pension” or the “invalidity benefit”. I will adopt the Tribunal’s references, being pension 1 and pension 2.

11    It is the Trustee’s acts in respect of pension 2 which are the subject of these proceedings. With that said, the applicant has also sought to agitate issues concerning pension 1.

12    In March 2009 Mr Carmody’s marriage ended. He was assessed by the Child Support Agency as being required to pay child support in relation to his two children.

Relevant documentation

1. Section 120 Notice of 14 October 2010

13    On 14 October 2010 the Trustee received a letter, a notice and a blank “Confirmation of a Person’s Employment form” from the Child Support Agency. The documentation stated that it was served on the Trustee by the Child Support Agency pursuant to s 120 of the Child Support (Registration and Collection) Act 1988 (Cth) (CSRCA).

14    The letter of 14 October 2010 materially provided:

…

NOTICE TO SUPPLY CSA WITH EMPLOYEE INFORMATION

The Child Support Agency (CSA) has recently been advised that David Joseph Carmody may be working for you, as either an employee or a contractor. To enable us to collect child support we need you to supply us with information about them.

Under section 120 of the Child Support (Registration and Collection) Act 1988, you are required to provide this information. You will not be breaching employee privacy when you supply your employee’s information to CSA in response to this notice.

…

What this means for you

•    You need to supply us with the information requested in the attached form within 14 days of receiving this notice.

…

15    The attached notice materially stated:

NOTICE TO FURNISH INFORMATION TO THE CHILD SUPPORT REGISTRAR PURSUANT TO SECTION 120

Child Support (Registration and Collection) Act 1988

I DO THIS BY NOTICE pursuant to paragraph (a) of subsection 120(1) of the Child Support (Registration and Collection Act 1988 (‘Registration and Collection Act’) require you to furnish the following information concerning:

David Joseph Carmody

date of birth 20 October 1972

Information Required

1.     Employee or contractor details, including name, address and phone numbers (Question 1 on attached form)

2.     Details of the employee’s or contractor’s circumstances (Question 2 on the attached form)

3.    Payroll details for the employee or contractor (Question 3 on the attached form)

WHERE A PERSON refuses or fails to comply with this notice, to the extent to which the person is capable of complying, that person is guilty of an offence under subsection 120(3) and punishable on conviction by a fine not exceeding $2000.

Subsection 120(3) is an offence of strict liability.

This notice is issued for the purpose of enabling the Registrar to determine whether to issue a notice under section 45 of the Registration and Collection Act for you to withhold child support payments from your employee or contractor.

I am exercising the powers, conferred upon me as State Manager by delegation from the Child Support Registrar, pursuant to section 15 of the Registration and Collection Act.

…

2. Section 45 Notices of 21 October 2010

16    On 21 October 2010 the Child Support Agency again wrote to the Trustee, this time to the Technical Officer Pensions Team, Pension Administrator – Comsuper. On that date, the Child Support Agency sent two notices to the Trustee.

17    The first notice was headed “Notice to Commence Child Support Deductions”. Relevantly the notice stated as follows:

NOTICE TO COMMENCE CHILD SUPPORT DEDUCTIONS

Thank you for providing the Child Support Agency (CSA) with information we requested about your organisation and the employment details of David Carmody. We now require you to commence child support deductions for David.

What this means for you

As an employer, you are legally required to deduct child support and send those deductions into CSA by the 7th of the month following the deductions.

We have enclosed :

•    A schedule which outlines the start date for payments and amount of child support to deduct.

Note: PEA is an amount protected from child support deductions. The amount is reviewed annually and is currently $617.26 net per fortnight. Child support deductions should only be made after David earns more than this amount.

What you need to do

It may be easier for you to make payments electronically. Please refer to the Employer Handbook or our website. …

If you or David Carmody have any questions about this letter please call the Child Support Agency … Your employer child support reference number is…

18    The second notice was headed “Notice to Change Child Support Deductions”. Relevantly the notice stated as follows:

NOTICE TO CHANGE CHILD SUPPORT DEDUCTIONS

We are writing to thank you for helping the Child Support Agency (CSA) with the collection of child support payments from David Carmody.

What this means for you

•    We have enclosed a schedule showing the start date and amount of child support to deduct from the wage/salary of the employee named in the attached schedule

•    Child support payments can be made electronically for employees. If you would like more information on how to do this, please contact us.

Thank you for your assistance.

What you can do

The CSA Customer Service team is available… to answer any questions you may have. Please quote your employer reference number…

19    While the notices served on 21 October 2010 did not specifically refer to s 45 of the CSRCA, the reference in both notices to the Trustee as an employer, and directions relating to deduction of child support payments from wages/salary earned, indicated that the Child Support Agency was relying on ss 45 and 46 of the CSRCA in respect of those notices. In particular, I note s 45(1) which provides:

(1)    The Registrar may, for the purpose of collecting amounts due to the Commonwealth under or in relation to a deductible liability by deduction from the salary or wages of the payer under this Part, give a notice in writing to an employer of the payer:

(a)    specifying the name of the payer and other particulars of the payer sufficient to enable the payer to be identified by the employer; and

   (b)    instructing the employer:

(i)    to make in accordance with section 46, as from a specified day, periodic deductions in accordance with the specified weekly deduction rate from salary or wages paid by the employer to the payer; and

(ii)    to pay to the Registrar in accordance with subsection 47(1) amounts so deducted.

20    On 1 November 2010 the Trustee provided the Child Support Agency with a completed “Confirmation of a Person’s Employment form”. In that form, the Trustee selected the check box that indicated that the applicant was a “full time employee on salary or wages”. Next to this the Trustee had inserted the words:

“Member is in receipt of MSBS Invalidity A Pension from Comsuper effective 1/4/1994”.

21    The applicant submits that on 31 July 2015 the Child Support Agency determined that pension 1 was to be included in the assessment of his child support obligations, that that assessment was backdated by the Child Support Agency to 2010, and that this resulted in the applicant having a lump sum child support debt of $29,446.58. So far as I can ascertain, this submission is not disputed by the Trustee. I further note that the Tribunal stated at [9] of its reasons that pension 1 was included in the assessment of child support obligations in 2015. I accept that a decision of the Child Support Agency to this effect was made on or about 31 July 2015 (the 2015 Child Support Assessment).

3. Section 72A Notice of 16 February 2016

22    On 16 February 2016 the Child Support Agency served a notice pursuant to s 72A of the CSRCA on the Trustee. Materially the notice provided as follows:

NOTICE TO PAY MONEY DIRECTLY TO

THE CHILD SUPPORT REGISTRAR PURSUANT TO SECTION 72A

Child Support (Registration & Collection) Act 1988

I DO BY THIS NOTICE REQUIRE Commonwealth Superannuation Corp being a person

(a)    by whom money is due or accruing, or may become due to; or

(b)    who holds, or may subsequently hold, money for or on account of, or

(c)    who holds, or may subsequently hold, money on account of some other person for payment to; or

(d)    who has authority from some other person to pay money to

Name: DAVID JOSEPH CARMODY….

…

who owes a debt of $29,446.58

I REQUIRE you to withhold from future payments amounts sufficient to pay the child support debt at the rate of $610.44 per fortnight until the debt referred to above is satisfied…

…

23    On 22 June 2016 Ms Carmody, on behalf of Mr Carmody, wrote to the Trustee, materially in the following terms:

…

I refer to a garnishee order from the Child Support Agency dated 16 February 2016 and note that Comsuper are continuing to deduct monies from David’s MSBS Invalidity Benefit.

As a matter of prudence David has always sought to pay this child support payment on a manual basis and views the garnishee order as unnecessary in relation to this matter.

David has only recently become aware that under Section 45 of the [MSBA] that no pension of benefit payable under the rules is capable of being assigned.

Therefore David requests that Comsuper cease to acknowledge the garnishee order and cease to make deductions to his invalidity benefit.

24    On 28 June 2016 Ms Carmody again wrote on behalf of Mr Carmody to Comsuper, materially in the following terms:

I refer to your previous correspondence and hereby submit an official complaint.

I contend that the [Trustee] has no authorisation to recognise a Child Support Agency garnishee order as this is a breach of Section 45 of the [MSBA].

Furthermore I draw attention to sections 13.12 and 13.13 of the SIS regulations 1994.

I contend that I do not want the [Trustee] to assign or charge any portion of my invalidity benefit payable under the MSBS Rules.

proceedings in the Superannuation complaints tribunal

25    Before the Tribunal, the respective positions adopted by the parties were, in summary, as follows.

26    Mr Carmody submitted:

    By complying with the Child Support Agency notices, the Trustee was altering pension 2 contrary to reg 13.16 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations). Section 58(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) also prohibited the governing rules of the MSBS fund from permitting the Trustee to be subject to direction by any other person in exercising any powers under the governing rules.

    The Trustee is not his “employer” as envisaged by the Child Support Agency’s s 45 notices of 21 October 2010. The Trustee does not “bear the cost”, nor is it “liable for the expense” of pension 1 or pension 2. Pursuant to s 6 of MSBA, the applicant ceased to be a member of the MSBS fund when he was discharged from the Australian Defence Force. The result of that cessation is that pension 2 is paid pursuant to s 13 of the MSBA, which confirms that the Commonwealth, rather than the Trustee, pays pension 2. The Trustee also does not play a role in the creation of the entitlement to pension 2. That entitlement arises upon the applicant satisfying the criteria in rule 22 of the MSBS Trust Deed.

    Pension 2 could not be classified as “work and income support related withholding payments” for the purposes of s 45 of the CSRCA because it was not a “superannuation income stream” under s 307-70 of the Income Tax Assessment Act 1997 (Cth) (ITAA 97) as it did not meet the definition of “pension” in s 10 of the SIS Act. Pension 2 is a “residual capital value” per rule 29 of the MSBS Trust Deed.

    In relation to the Child Support Agency’s s 72A notice of 16 February 2016, the Trustee did not fulfil the definition of a person who, inter alia, holds money for or on account of a relevant debtor. Mr Carmody was entitled to receive the payment of pension 2 from the Commonwealth rather than the Trustee.

    The “protected earnings amount” only applied in relation to “an employer who pays salary and wages”, but as the child support liability related to both pension 1 and pension 2, the deemed “protected earnings amount” of the applicant should be increased to $1459.52. The notices served by the Child Support Agency on the Trustee sought to deduct more than that protected earnings amount.

    Following the 2015 Child Support Assessment, Mr Carmody’s child support obligations were calculated by reference to pension 1, which was not controlled by the Trustee. The Trustee was not empowered to garnishee in respect of a payment it does not pay or hold on behalf of the applicant. Furthermore, the obligations related to a payment that fell outside the scope of “employer” in s 45 of the CSRCA.

27    The Trustee’s position was:

    The Trustee was required to comply with the Child Support Agency’s s 120 notice in circumstances where the definition of “person” in the CSRCA included a company.

    The Trustee is a body corporate pursuant to s 4 of the CSRCA.

    Relevantly to s 45 of the CSRCA, “employee” is defined by s 4 of the CSRCA as “a person who receives, or is entitled to receive, work and income support related withholding payments”, while “employer” is defined as the person “who makes, or is liable to make, work and income support related withholding payments”.

    “Work and income support related withholding payments” is defined in a Note to s 4 of the CSRCA as including “payments of superannuation benefits”.

    As Mr Carmody was receiving a pension from the MSBS fund, he met the very broad definition of “employee” under the CSRCA, and the Trustee met the very broad definition of “employer” under that Act.

    The Trustee never misled the Child Support Agency into thinking that Mr Carmody was employed by the Trustee in the sense of working for the Trustee. The Child Support Agency was always aware of the correct basis of the relationship between the Trustee and Mr Carmody.

    In relation to the notice served by the Child Support Agency on the Trustee pursuant to s 120, the Trustee complied because “salary and wages” is defined by the CSRCA to include “work and income support related withholding payments”.

    In relation to the Child Support Agency’s s 72A notice, the Trustee complied because “person” is defined in s 72A to “include a partnership and any Commonwealth, State or Territory public authority (whether incorporated or unincorporated)” and the Trustee is a body corporate.

    In relation to Mr Carmody’s arguments concerning his receipt of two pensions and the Trustee acceding to the full monetary requests for payments inclusive of amounts which pertained to pension 1, that was an issue for Mr Carmody to raise with the Child Support Agency. Similarly, the argument that the amount specified in the s 72A notice exceeded the protected amount in the CSRCA guidelines was a matter for him to raise with the Child Support Agency.

    The Trustee rejected the proposition that its actions breached reg 13.12 of the SIS Regulations or the prohibition against assignment in s 45 of the MSBA. The case law has established an assignment to be a transfer of an existing proprietary right, where a proprietary right is a right to absolute ownership and a financial interest in private property at common law. Mr Carmody continued to have the right to receive pension 2 – it had not been removed and given to any other person (including the Child Support Agency).

    Even if there had been assignment of part of pension 2 by the deductions made by the Trustee (which were redirected to the Child Support Agency), that assignment was not prohibited by either reg 13.12 of the SIS Regulations or s 45 of the MSBA as it would have been an assignment occurring by operation of law and not a voluntary assignment by Mr Carmody. Only a voluntary assignment was prohibited by s 45.

    The Trustee had not recognised a charge over Mr Carmody’s benefit for the purposes of reg 13.13 of the SIS Regulations.

Decision of the Superannuation Complaints Tribunal

28    The Tribunal noted at [20] of its reasons for decision that, under s 37(6) of the SRC Act, its role was to initially determine whether the Trustee’s decision to comply with Child Support Agency notices was “fair and reasonable in its operation in relation to the Complainant in the circumstances”. The Tribunal observed:

21.     The issue is not what decision the Tribunal would have made on the evidence before the Trustee but whether the decision was fair and reasonable.

…

24.     Albeit, the Tribunal cannot help but comment, that far from the Trustee ‘intervening’, it has merely complied with what it understands to be legally binding notices issued to it by the CSA.

25.     Therefore, the sole issue now confronting this Tribunal is the fairness and reasonableness of the Trustee’s decision to give effect to the CSA’s Notices.

29    The Tribunal noted that the central issue before it was the payment of monies, sourced from Mr Carmody’s pension 2, to the Child Support Agency.

30    The Tribunal then examined Mr Carmody’s assertion that the Trustee’s compliance with the relevant notices issued in relation to pension 2 breached reg 13.16 of the SIS Regulations:

27.     Turning now to the first of the Complainant’s substantive arguments against complying with either the CSA’s s45 or s72A notices, the Tribunal must initially consider the correct interpretation of reg13.16 of the SIS Regulations. This relevantly states:

…it is a standard applicable to the operation of regulated superannuation funds that, subject to subregulation (2), a beneficiary’s right or claim to accrued benefits, and the amount of those accrued benefits, must not be altered adversely to the beneficiary by amendment of the governing rules, or by any other act carried out, or consented to, by the trustee of the fund.

28.     The nub of the Complainant’s contention in this regard is:

The Applicant submits that the [Trustee] has undertaken and consented to an action that has altered Mr [Son’s] Invalidity [sic] benefit and the amount of which has been altered in credit to a third party being the CSA.

29.     The Trustee has countered at follows:

4.    As detailed in our earlier submissions, [Trustee] has not altered the amount of Mr [Son’s] Invalidity Pension nor has it made an impermissible reduction to Mr [Son’s] Invalidity Benefits. [Trustee] has directed payment of a portion of the Invalidity Pension specified in a Deduction Notice as ‘the amount to deduct’ to the Child Support Agency, in compliance with a Deduction Notice.

31    The Tribunal continued:

30.     The Tribunal has carefully considered these contrary responses and considers the Trustee is correct; ‘the amount of those accrued benefits’ has not been ‘altered adversely’ by the Trustee, but rather each fortnight a specified amount of money has been applied on the Son’s behalf in satisfaction of a legal obligation he has, not only incurred, but acknowledges he has incurred. Further, when that obligation has been discharged, the ‘amount of those accrued benefits’ – that being the entitlement to the invalidity pension, remains unaffected.

31.     It is no doubt for this reason that reg13.16 contains the following ‘carve out’, namely, where:

(f)    the alteration is made:

        (i)    to give effect to a payment split;…

because in the case of a Family Law mandated ‘payment split’, the fund member’s ‘amount of [those] accrued benefits’ has been permanently ‘altered adversely’ by virtue of the payment split, in favour of the fund member’s former spouse; in contradistinction no such legislative carve out was considered necessary for payments made pursuant to a CSA notice, as compliance did not permanently alter a Fund member’s ‘amount of [those] accrued benefits’.

32.    The Tribunal accordingly determines the Trustee’s compliance with the CSA’s payment notices did not offend reg13.16.

32    The Tribunal considered whether the Trustee was required to comply with the s 45 notice insofar as s 45 referred to an employer/employee relationship between the Trustee and the applicant. The Tribunal noted the Trustee’s submission that the terms “employer” and “employee” were very broad under the CSRCA, and that for the purpose of s 45 the Trustee was the applicant’s “employer” as it made “work and income support related payments” to him. The Tribunal turned to the definition of work and income support related payments in s 4 of the CSRCA which provides:

“work and income support related withholding payments" means:

(a)    payments from which an amount must be withheld under a provision of Subdivision 12-B (other than section 12- 55), 12-C or 12-D or Division 13 in Schedule 1 to the Taxation Administration Act 1953 (even if the amount is not withheld); or

(b)    payments from which an amount would be required to be withheld under a provision mentioned in paragraph (a) (other than section 12- 55) apart from subsection 12-1(1A) in Schedule 1 to that Act.

Note:    The payments covered are: payments to employees and company directors, payments to office holders, return to work payments, payments under labour hire arrangements, payments of annuities, payments of superannuation benefits, payments for termination of employment, payments for unused leave, benefit payments, compensation payments, payments specified by regulations and alienated personal services payments.

33    The Tribunal noted at [36]:

The Tribunal is conscious the legislation underpinning the operation of the [CSRCA] is beneficial, in that it is designed to spread the income catchment net as widely as possible, in order to achieve the maximum level of adherence by separated parents, for the continuing financial support of their biological offspring.

34    The Tribunal concluded:

38.    Accordingly, the Tribunal, conscious of the legislative intent underlying the [CSRCA], coupled with the breadth of coverage mandated by the ‘Note’ to the [CSRCA’s] definition of ‘work and income support related withholding payments’, accepts it was not unfair or unreasonable for the Trustee to conclude its pension 2 payments to the Son were encompassed by a s45 notice.

39.    The Tribunal’s determination in this regard is also bolstered by the fact the ‘Note’ specifically refers to ‘payments of superannuation benefits’ and Logan J’s finding in Campbell v Superannuation Complaints Tribunal [2016] FCA 808, wherein he described Mr Campbell’s receipt of an invalidity pension benefit as:

… having regard to the definition of “superannuation interest”, and to the terms of the Deed, the interest which the Deed has conferred on him to receive, subject to the terms of that Deed (which include the possibility of re-classification), namely his invalidity pension benefit, is a “superannuation interest” as defined.

allied with the fact the Tribunal accepts the Trustee’s contention that:

•    A possible future reclassification of a[n] [Fund] Invalidity [sic] classification to a Class C benefit does not establish a residual capital value. A residual capital value is the payment of a lump sum of the remaining capitalised value of a pension. Whereas when a[n] [Fund] Invalidity [div] pensioner is reclassified to Class C, the resulting preserved benefit restores the member’s previous preserved employer benefit in the fund, without any reference to how much pension has been paid to the member.

11.    [Trustee’s] position is that a[n] [Fund] Invalidity pension is a “superannuation income stream” under section 307-70 of the Income Tax Assessment Act 1997. In turn, regulation 12-80 of Schedule 1 of the Taxation Administration Act 1953 imposes a corresponding obligation on [Trustee] to withhold an amount from the superannuation income stream.

12.    Accordingly Mr [Son’s] [Fund] Invalidity Pension is a “pension” under the SIS Regulations, as it is a “superannuation income stream” for tax purposes; and it comes within the definition of “work and income support related withholding payments” (and, in turn, “salary or wages”) in section 4 of the [CSRCA].

(Formatting in original.)

35    The Tribunal considered Mr Carmody’s submission that the Trustee did not meet the definition of an “employer” under s 4 of the CSRCA because pension 2 was paid by the Commonwealth, and not the Trustee. The Tribunal rejected this submission. Rather, the Tribunal accepted the contention of the Trustee that the Trustee bore the liability of making the fortnightly pension 2 payments and that, “if payment of Mr [Son’s] pension was to stop, any legal action on behalf of Mr [Son] for reinstatement of his pension would be made against the [Trustee], not the Commonwealth.”

36    The applicant also submitted that the Trustee was not a “person” and therefore should not have complied with the s 72A notice. Relevantly, s 72A states:

72A Registrar may collect debts from a third person

(1)     The Registrar may give written notice to a person:

(a)    by whom money is due or accruing, or may become due, to a relevant debtor; or

(b)     who holds, or may subsequently hold, money for or on account of a relevant debtor; or

37    The Tribunal observed that the definition of person in s 72A of the CSRCA included “a partnership and any Commonwealth, State or Territory public authority (whether incorporated or unincorporated)”. The Tribunal noted that the Trustee was a “body corporate, continued in existence…by an act (Act 2) of Federal Parliament”, and hence that it was fair and reasonable for it to comply with the s 72A notice.

38    The Tribunal also considered the applicant’s submission that the Trustee breached reg 13.13 of the SIS Regulations by complying with the Child Support Agency’s notices. The Tribunal said:

45.     Similarly, the Complainant’s argument that compliance with a s45 or s72A [CSRCA] notice offends reg13.13 of the SIS Regulations prohibiting a ‘charge’ over the Son’s benefit; the Tribunal accepts and adopts the Trustee’s counter argument that reg13.11 defines a charge ‘to include a mortgage, lien or other encumbrance’, which are forms of security over property; relevantly the Trustee noted in this respect:

53.    Child Support deductions are not appropriately categorised as a “security over property”. The deductions would not continue to be made if Mr [Son’s] benefit ceased and would not crystallise in any way such that the Child Support Agency became the owner of the benefit, as is the case with a mortgage lien or other encumbrance.

46.    The Tribunal therefore does not agree with the Complainant’s contention that reg13.13 of the SIS Regulations is breached by virtue of the Trustee complying with either a s45 or s72A [CSRCA] notice.

39    Finally, the Tribunal considered Mr Carmody’s argument that the Trustee garnisheed more than the protected earnings amount, and that the inclusion of amounts referable to pension 1 made the deduction void. The Tribunal rejected the applicant’s argument, and concluded that this matter concerned an issue that should be raised with the Child Support Agency.

40    In light of these findings, the Tribunal at [49] accepted the Trustee’s position that, “in complying with the… [CSRCA], as it is legally required to do, [Trustee] has been fair and reasonable”. Accordingly, the Tribunal affirmed the Trustee’s decision under s 37(6) of the SRC Act.

Appeal to the Federal Court

41    The sole ground of appeal before me is as follows:

That the respondent contravened Regulation 13.16 of the SIS Regulation and should never have informed the Child Support Registrar that the Applicant was an employee.

42    The applicant seeks the following orders:

1.    That the matter be remitted back to the Superannuation Complaints Tribunal.

2.    That the Applicant be reimbursed should the court find in his favour.

43    Mr Carmody also set out in his notice of appeal “Questions of law” and “Findings of fact that the Court is asked to make”. These points appear to particularise his ground of appeal:

Questions of law

1.     Is the Commonwealth Superannuation Corporation as Trustee of the Military Superannuation and Benefits Scheme contravening Regulation 13.16 of the Superannuation Industry (Supervision) Regulations 1994 when setting-off of Invalidity Benefits, paid under Rule 22 the Military Superannuation and Benefits Trust Deed, against a debt owing to the Commonwealth.

2.     If the answer to question 1 is “No” then is the Commonwealth Superannuation Corporation in their capacity as trustee of the Military Superannuation and Benefits Trust Deed, liable to comply with a notice given by the Child Support Registrar under Section 45 and Section 72A of the Child Support (Registration and Collection) Act 1988; in relation to Invalidity Benefits paid under Rule 22 of the Military Superannuation and Benefits Trust Deed.

Findings of fact that the Court is asked to make

1.    That the Tribunal erred in their attainment of factual common sense with regard to the Trustee of a Superannuation Fund being perceived as an Employer.

2.     That the Tribunal erred in failing to place weight upon the Statutory provisions of the Military Superannuation and Benefits Act and Trust Deed.

3.     That the Tribunal overstepped their administrative powers by making their own interpretation of SIS Reg 13.16 by placing weight upon a clause which reflects an assignment of benefits for a specific purpose whilst ignoring other clauses that related to the compulsory withholding of taxation that is not a permanent alteration. The clause prescribes Alterations full stop.

4.     That the Tribunal erred in its interpretation of the validity of a 72A notice in that it was argued by the Applicant that the Trustee is not a third party who holds money on behalf of the Applicant, the Applicant never argued that the Trustee was not a “Person”.

submissions of the parties in the appeal

44    On 21 August 2018 detailed submissions on behalf of Mr Carmody were filed in support of his ground of appeal. Additional submissions were also filed on Mr Carmody’s behalf on 11 June 2019, 1 July 2019 and 4 September 2019.

45    The applicant was assisted at the hearing of the appeal by Mr Peter Burns, a veterans’ advocate, who made oral submissions. The Trustee was represented by Counsel, and relied on both oral and written submissions filed on 27 June 2019, 27 August 2019 and 11 September 2019.

46    In summary, the applicant submitted:

    The applicant receives two pensions. The present dispute relates in part to his child support obligations being reassessed and backdated to 2010 to include pension 1 (i.e. the 2015 Child Support Assessment). Pension 1 should be considered as compensation rather than a “tax free pension or benefit” under s 5 of the Child Support (Assessment) Act 1989 (Cth), and should not have been included in the 2015 Child Support Assessment.

    The Trustee does not pay, nor is it liable to pay, pension 1, as that pension is paid under s 24 of the VEA, and the Trustee has no authority to garnishee in respect of this payment.

    The Trustee has garnisheed amounts without questioning the Child Support Authority’s figures.

    The Trustee acted illegally by complying with the Child Support Agency notices in so far as they were inclusive of amounts referable to pension 1, which the Trustee does not administer. Pension 1 does not meet the definition of “work and income support related withholding payments” because it is tax exempt, non-assessable income and, pursuant to s 125 of the VEA, absolutely inalienable.

    The Trustee incorrectly identified itself as the applicant’s “employer” in complying with notices under s 45 of the CSRCA. The Trustee does not bear the cost or expense of pension 2. The effect of s 6 of the MSBA is that the applicant has ceased as a member of the MSBS fund. It is the Commonwealth (and not the Trustee) which pays benefits to the applicant. It is clear that the applicant is paid pension 2 directly from Consolidated Revenue from rule 22 of the MSBS Trust Deed and s 13(b) of the MSBA. Further, the applicant’s statutory entitlement to pension 2 is not created by the Trustee – rather it is the MSBA and the Trust Deed that creates the entitlement. Pension 1 and pension 2 are the property of the applicant, and not the property of the Trustee. Accordingly, the Trustee is not bound by a s 45 notice issued by the Child Support Agency. To that extent, the Trustee was wrong to comply with the s 45 notices.

    The Child Support Agency issued s 72A notices to enable the Trustee to deduct money over and above the “protected earnings amount” applicable to a s 45 notice and a s 46 deduction.

    The Tribunal erred in finding that the applicant argued the Trustee was not a “person”. Rather, the applicant argued in the Tribunal that the Trustee was not “a 3rd party who holds money on behalf of” the applicant.

    Section 72A allows the Child Support Agency to collect money from any “person” who holds money on behalf of a child support debtor. The Trustee did not hold money on behalf of the applicant in respect of pension 2 – this was made clear by s 13(b) of the MSBA. Both s 12 and s 13 of the MSBA require the Trustee to transfer all equity held when a person ceases to be a member to Consolidated Revenue. This position applies to the applicant. Any money due to the applicant is paid from Consolidated Revenue. Nor does the Trustee hold money on behalf of the applicant in respect of pension 1 as it is paid under the VEA. The correct procedure to be followed would be for an application to be made to the Commonwealth Finance Minister in accordance with s 64 of the Public Governance, Performance and Accountability Act 2013 (Cth).

    Regulation 13.16 of the SIS Regulations prevents the Trustee from altering pension 2 without first seeking the applicant’s permission. The Trustee has undertaken and consented to action which has altered pension 2, which have been altered in credit to a third party (namely, the Child Support Agency). The mechanisms involved with the payments by the Trustee to the Child Support Agency involve deception on the part of the Trustee in referring to those payments as “deductions”. The Trustee has no authority to appropriate funds other than in accordance with s 13 of the MSBA. The mechanism of the payments demonstrates they are not deductions to pension 2, but alterations of it. Any request made by the Child Support Agency is void at law.

    Section 58 of the SIS Act prohibits the governing rules of a superannuation entity permitting a trustee to be subject to direction by any other person in the exercise of its powers under the governing rules.

47    The Trustee submitted that the determination of the Tribunal ought be affirmed, in summary on the basis that no error of law was apparent from its reasons.

CONSIDERATION

48    As Kenny and Lander JJ explained in Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8 at [46], the Tribunal “stands in the shoes of the trustee and determines, based on all the information before it, whether or not the actual decision taken by the trustee was fair or reasonable in the circumstances”. The Tribunal must affirm the decision if it is satisfied that the decision was fair and reasonable: s 37(6) SRC Act. Their Honours continued:

49.    The [SRC] Act does not specify the considerations that the Tribunal is bound to take into account in deciding whether or not a decision of the trustee was fair or reasonable: see, in this regard, HEST Australia Ltd v Sykley (2005) 147 FCR 248 at 261 [49] (Crennan J). These considerations must therefore be determined by reference to the subject-matter, scope and purpose of the Act: see generally Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39–40. A purpose of the Act is “to ensure members and beneficiaries are not adversely affected by unfair and unreasonable decisions of insurers and trustees”: see HEST 147 FCR at 261 [49]. Considered in this light, the governing trust deed and insurance terms will necessarily be relevant considerations: see Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at 366 [28] (Allsop J) and Cameron 130 FCR at 131 [32]. This is because an essential part of the statutory scheme is that a determination under s 37(3) substitutes the Tribunal’s decision for the decision of the trustee; and in consequence, the substituted decision must itself be one that is authorised by the legal instruments governing the fund: compare Briffa v Hay 75 FCR at 443 (Merkel J).

49    As I noted earlier, although the applicant formally relies on one ground of appeal, he alleged additional errors of law by the Tribunal in the course of submissions. Further, the applicant alleged errors on the part of the Tribunal by reference to identified questions of law, and findings of fact which the applicant asked the Court to make. In summary, these alleged errors, questions of law and findings of fact relate to the following issues:

(1)    The proper interpretation of reg 13.16(1) of the SIS Regulations, and whether the Trustee’s compliance with the notices breached that regulation by altering adversely to Mr Carmody his accrued benefits.

(2)    Whether, by complying with the s 45 and 72A notices, the Trustee breached s58 of the SIS Act.

(3)    The proper interpretation of s 45 of the CSRCA, particularly in its reference to an employer/employee relationship, and whether such a relationship in those defined terms existed such that the Trustee was obliged to comply with the notices served on it pursuant to s 45.

(4)    The proper interpretation of s 72A of the CSRCA, and whether the Trustee was a person who held money for or on account of Mr Carmody.

(5)    Whether the Trustee was legally allowed to comply with the 72A notices of the Child Support Agency by deducting amounts for child support referable to pension 1, and whether the Tribunal was correct to find that any dispute by Mr Carmody in relation to the question whether the calculation of the amount garnished exceeded the “protected earnings amount” applicable to s 46 of the CSRCA was a matter for him to take up with the Child Support Agency rather than with the Trustee.

(6)    Whether compliance with the s 72A notices created an assignment of, or a charge over, Mr Carmody’s accrued benefits.

50    It is appropriate to examine the Tribunal’s findings in relation to these issues, and determine whether the Tribunal erred in those findings.

1. The proper interpretation of reg 13.16(1) of the SIS Regulations, and whether the Trustee’s compliance with the notices breached that regulation by altering adversely to Mr Carmody his accrued benefits

51    Regulation 13.16(1) of the SIS Regulations provides:

(1)     For the purposes of subsection 31(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds that, subject to subregulation (2), a beneficiary’s right or claim to accrued benefits, and the amount of those accrued benefits, must not be altered adversely to the beneficiary by amendment of the governing rules or by any other act carried out, or consented to, by the trustee of the fund

52    Regulation 13.16(2) provides for permitted alterations of a beneficiary’s right or claim to accrued benefits.

53    The Tribunal found that the deduction by the Trustee of monies in accordance with the notices served by the Child Support Agency did not adversely alter Mr Carmody’s rights or claims, or the amount of his benefits, because the Trustee was applying – on Mr Carmody’s behalf – a specified amount in satisfaction of a legal obligation which Mr Carmody had incurred, and had acknowledged that he had incurred. Further, the Tribunal found that Mr Carmody’s entitlement to pension 2 remained unaffected, and there was no alteration in circumstances where, once Mr Carmody’s debt was extinguished, the amount of pension 2 he received would revert to the pre-deduction amount.

54     “Alteration” is defined by the Macquarie Dictionary as:

noun 1. the act of altering.

2. the condition of being altered.

3. a change; modification.

55    I agree with the submission of Mr Burns for Mr Carmody that an alteration need not be a permanent event. An alteration can be temporary if, for example, transitory factors cause an alteration such that the status quo resumes once those factors cease to operate. However, I am not satisfied that Mr Carmody’s rights or claim to his accrued benefits or the amount of his accrued benefits were “altered adversely” to him by an act of the Trustee within the meaning of reg 13.16 of the SIS Regulations.

56    The term “accrued benefits” is not defined by the SIS Regulations, although there are provisions in Part 12 of those regulations for the calculation of certain accrued benefits referable to pre-1 July 1988 funding credits and debits. More generally, there is authority that accrued benefits are those to which members of a fund become entitled pursuant to criteria in the fund such as years of service, earnings, marital status and so forth (see for example: Hockin v Bank of British Columbia (1990) 46 BCLR (2d) 382 at 393, Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 at 605). In Employers First v Tolhurst Capital Ltd (2005) 143 FCR 356; [2005] FCA 616, Branson J observed:

57    Neither the SIS Act nor the SIS Regulations contains a definition of ‘accrued benefit’ for the purpose of reg 13.16. In Asgard Capital Management Ltd v Maher (2003)131 FCR 196 the Full Court of this Court gave consideration to Div 6.3 of the SIS Regulations, which is concerned with the cashing of benefits. At [9] the Full Court equated accrued benefits with benefits in which the beneficiary has an absolute interest. It did so in a context in which the time fixed by the terms of the trust for the distribution of trust property had arrived (see [7]). The definition of ‘accrued benefits’ contained in reg 9.27 of the SIS Regulations for the purpose of Division 9.5 of those regulations is as follows:

accrued benefits, in relation to a member of a defined benefits fund, means the benefits to which the member has an absolute or potential entitlement at the valuation date on account of the length of time the member has been a member of the fund at that d

58    It is not necessary on this appeal for me to reach a concluded view on the precise meaning to be attributed to the phrase ‘accrued benefits’ in regulation 13.16 of the SIS Regulations. However, in my view, a member’s ‘accrued benefits’ for the purpose of that regulation cannot exceed the benefits to which the member has an absolute or potential entitlement at the relevant date on account of the length of time that the member has been a member of the fund.

57    In my view, the comments of her Honour are applicable in this case, such that I am satisfied that the term “accrued benefits” refers to benefits to which Mr Carmody has an absolute or potential entitlement under the terms of the MSBS fund.

58    Mr Carmody’s entitlement to his accrued benefits in respect of pension 2 remains intact. The amount of those accrued benefits also remains the same. What was altered was where those accrued benefits were paid. The Trustee has applied certain amounts towards satisfaction of a child support debt owed (and conceded to be owed) by Mr Carmody in compliance with ss 45 and 72A notices. In those circumstances, I am not satisfied that Mr Carmody’s right or claim to accrued benefits, or the amount of those accrued benefits, has been altered adversely to him.

59    The Tribunal formed a similar view at [30]-[32] of its reasons for decision. In my view, it was open to the Tribunal to form that view.

2. Whether, by complying with the s 45 and 72A notices, the Trustee breached s 58 of the SIS Act

60    Mr Carmody has submitted that rule 27 of the MSBS Trust Deed guarantees his receipt of pension 2 “in full”, and implied that the Trustee, in complying with the ss 45 and 72A notices, breached s 58 of the SIS Act. Section 58 relevantly provides:

Trustee not to be subject to direction

(1)    Subject to subsection (2), the governing rules of a superannuation entity other than a superannuation fund with fewer than 5 members or an excluded approved deposit fund must not permit a trustee to be subject, in the exercise of any of the trustee's powers under those rules, to direction by any other person.

(2)    Subsection (1) does not apply to:

(a)    a direction given by a court; or

(b)     a direction given by the Regulator; or

(c)     a direction given by a beneficiary or a group of beneficiaries that relates to benefits payable to that beneficiary or those beneficiaries, as the case may be; or

(d)     a direction given by a beneficiary to take up, dispose of or alter the amount invested in an investment option, where:

(i)     the entity is a registrable superannuation entity; and

(ii)     the direction is given in circumstances prescribed by the regulations for the purposes of this paragraph; or

(da)    a direction given by a member of a regulated superannuation fund to attribute (or continue to attribute) an amount that is an accrued default amount for the member to a MySuper product or an investment option within a choice product in the fund; or

(e)    if the entity is an employer-sponsored fund--a direction given by an employer-sponsor, or an associate of an employer-sponsor, in circumstances prescribed by the regulations; or

(f)    a direction given by the Superannuation Complaints Tribunal; or

(fa)    a direction given under the AFCA scheme; or

(g)    a direction given by a member (within the meaning of the Superannuation Contributions Tax (members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 ) that is permitted to be given by subsection 15(8A) of that Act.

…

(3)    If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

61    There is no evidence before me that demonstrates the Trustee is a “superannuation entity” as defined in s 10 of the SIS Act. I will assume, for the purpose of considering Mr Carmody’s submission, that the Trustee is a “superannuation entity”.

62    Rule 27 of the MSBS Trust Deed provides:

(1)    Where a person who is entitled to invalidity benefits is classified as Class A:

(a)    subject to Part 10, his or her member benefits is payable to him or her as a lump sum, in accordance with Part 11; and

(b)    subject to Parts 10 and 10A, his or her employer benefit is converted into a pension payable to him or her.

(2)    A person who is entitled to be paid a member benefit under subrule (1) may elect that, instead of that benefit being paid to him or her, there be applicable to him or her a preserved benefit of the amount of the benefit and if he or she so elects:

(a)    the member benefit is not payable to him or her as a lump sum; and

(b)    there is applicable to him or her a preserved benefit of that amount.

(3)    If a person who is entitled to be paid a member benefit under subrule (1):

(a)    does not request that the benefit be paid to him or her as a lump sum; and

(b)    does not make an election under subrule (2);

within the period of 3 months after becoming entitled to the benefit, there is applicable to him or her a preserved benefit of the amount of that benefit.

63    Rule 27 of the MSBS Trust Deed does not provide for a power the Trustee may exercise. That rule sets out the way in which an employer benefit and a member benefit are payable to person entitled to a Class A invalidity benefit, and provides that a member benefit may be preserved if an entitled person does not request the amount be paid as a lump sum.

64    Clause 3 of the MSBS Trust Deed sets out functions and powers of the Trustee. It provides:

(1)    The functions of CSC are to administer the Superannuation Scheme and to manage and invest the Fund in accordance with the provisions of the Act and this Deed including, without limiting the generality of the foregoing, the following functions :

(a)    to pay benefits to or in respect of members, and to make payments to and receive payments from the Commonwealth, as provided for in the Act;

(b)    to provide advice to the Minister on proposed changes to the Act and the Deed;

(c)    to determine interest rates for the purposes of the Superannuation Scheme;

(d)    to determine, from time to time, the issue price and withdrawal price of a unit in an Investment Division of the Fund.

(2)    CSC has power in Australia and elsewhere to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and in particular, may do any of the following :

…

(3)    Subject to the SIS Act, in exercising its functions and powers CSC must have regard to :

(a)    the interests of members and the Commonwealth; and

(b)    any statement of policy of the Commonwealth Government on any matter that is relevant to the performance of the functions, duties and powers of CSC by the Minister with a request that CSC consider that policy.

65    Mr Carmody has not otherwise pointed to a power of the Trustee under the MSBS Trust Deed, which became subject to a direction of the Child Support Agency by reason of the Trustee’s compliance with a ss45 or 72A notice.

66    Section 58 was considered in detail by Blue J in Retail Employees Superannuation Pty Ltd v Pain (2016) 115 ACSR 1; [2016] SASC 121. At [488] his Honour observed:

488.    Secondly, particularly given the contractual or quasi-contractual nature of the relationship between a trustee and members, there will be many provisions of governing rules of regulated superannuation entities that enable members to give instructions to the trustee exercisable as of right which it cannot have been the intention of sections 58 and 59 to preclude. Examples are instructions by a member to change from REST Super to REST Select, to rollover his or her interest to another superannuation fund or, if he or she has reached retirement age, to cash his or her benefit. Literally, these instructions are directions by a person to the trustee in contravention of subsection 58(1). It cannot have been the legislature’s intention that subsections 58(1) or 59(1) would apply to such instructions. Leaving aside the provisions of subsection 59(1A) for the time being, sections 58 and 59 should be interpreted such that they do not apply when the governing rules give to a member a right and impose on the trustee a corresponding duty such that the trustee has no power or discretion not to give effect to the right.

(emphasis added)

67    Similarly in LGSS Pty Ltd v Egan [2002] NSWSC 1171, Austin J noted:

89.    According to Ms Pearce, the text writers who explain the distinction between a requirement for consent and a requirement to act on directions invariably cite Beauclerk v Ashburnham (1845) 8 Beav 322; 14 LJCh 241 and Cadogan v Earl of Essex [1854] EngR 330; (1854) 2 Drew 227; 23 LJCh 487. In both of these cases the trustees were authorised and required, by and with the consent and direction in writing of the tenant for life, to invest in leaseholds. In the first case the trustees objected to doing so, on the ground that the proposed investment would be unfair to the remainderman. It was held that the trustees could not object to investment in leaseholds as such, but they had a discretion whether or not to agree to the particular investment proposed. In the second case, Beauclerk v Ashburnham was followed on the ground that "the trustees are under an obligation; the direction is imperative; and if the tenant for life thinks fit to have the trust fund invested in the purchase of leaseholds the trustees must adopt that investment" (2 Drew at 229 per Kindersley V-C), without any acknowledgement that the trustees had a residual discretion of any kind. Although Ms Pearce criticises the latter decision, she accepts (as do Ford and Lee) that where the obligation to follow directions is clearly and specifically expressed, any discretion of the trustee is wholly removed.

(emphasis added)

68    Although not specifically stated, I understand that Mr Carmody’s argument is that, under the MSBS Trust Deed, the Trustee has the power to pay pension 2 only as Mr Carmody directs. To that extent, it follows that the Trustee, in deducting part of pension 2 to pay to the Child Support Agency, must be following a direction by the Child Support Agency, contrary to s 58 (1) of the SIS Act. This argument inherently criticises the conduct of the Trustee (for complying with the relevant notices) and the Child Support Agency itself (in issuing the relevant notices). However:

    Section 58(1) addresses the governing rules of a “superannuation entity”. Mr Carmody has not identified how the rules of the MSBS Trust Deed contravene s 58 in the present context. There is nothing to which Mr Carmody has drawn my attention which supports a finding that a garnishee notice by the Child Support Agency is in any way referable to the rules of the MSBS Trust Deed, or that the MSBS Trust Deed rules permit a direction by the Child Support Agency to the Trustee to comply (or otherwise) with such garnishee notice.

    Second, while in a broad sense a garnishee notice could be considered a direction for the purposes of s 58(1) of the SIS Act, both ss 46 and 72A(2) of the CSRCA provide that a trustee which fails to comply with notices issued pursuant to those sections commits an offence. To the extent that compliance with a direction for the purposes of s 58(1) of the SIS Act requires a trustee to be in a position of discretion in respect of compliance with such a direction, any such discretion on the part of the Trustee in this case is removed by the terms of ss 46 and 72A of the CSRCA. For similar reasons to those explained in Pain and Egan, I am satisfied that, as a question of statutory construction, it cannot have been the legislature’s intention that subsection 58(1) of the SIS Act would apply to notices issued by the Child Support Agency under ss 45 or 72A of the CSRCA

69    In my opinion, Mr Carmody’s argument on this point has no merit.

3. The proper interpretation of s 45 of the CSRCA, particularly in its reference to an employer/employee relationship, and whether such a relationship in those defined terms existed such that the Trustee was obliged to comply with the notices served on it pursuant to s 45.

70    As I have already noted, under s 45 of the CSRCA the Child Support Agency may give a notice in writing to an “employer” of a payer under that Act, instructing the employer to make periodic deductions in accordance with the “weekly deduction rate” from salary or wages paid by the employer to the payer, and to pay to the Child Support Agency the amounts so deducted. “Employer” is defined by s 4 of the CSRCA as “a person who makes, or is liable to make, work and income support related withholding payments”.

71    I am satisfied of the following points.

72    First, there is no suggestion on the material before me that the Trustee purported to be an employer of Mr Carmody, in the sense of representing that Mr Carmody was a person who worked for it as an employee. The communications from the Child Support Agency to the Trustee were framed in terms of the Child Support Agency describing the Trustee as an “employer” in light of the definition in s 4 of the CSRCA and the terms of s 45 of the CSRCA.

73    Second, it is plain from the definitions of “employer” and “employee” in s 4 of the CSRCA that the legislature intended to expand the meaning of those terms in the context of that Act beyond the scope of their ordinary meaning for the purposes of that legislation.

74    Third, the definition of “person” in s 4 of the CSRCA is inclusive of a company. “Company” is defined by s 4 as including “any body or association, corporate or unincorporate, but does not include a partnership.” “Company” is not confined to bodies corporate incorporated pursuant to the Corporations Act 2001 (Cth) or predecessor legislation. The Trustee is a body corporate, established as “Australian Reward Investment Alliance” under s 20 of the Superannuation Act 1990 (Cth) and continued in existence as “Commonwealth Superannuation Corporation” pursuant to s 5 of the Governance of Australian Government Superannuation Schemes Act 2011 (Cth). It follows that the Trustee is a “person” within the meaning of s 4 of the CSRCA.

75    Fourth, “work and income support related withholding payments” is defined by s 4 of the CSRCA as meaning:

(a)     payments from which an amount must be withheld under a provision of Subdivision 12-B (other than section 12- 55), 12-C or 12-D or Division 13 in Schedule 1 to the Taxation Administration Act 1953 (even if the amount is not withheld); or

(b)     payments from which an amount would be required to be withheld under a provision mentioned in paragraph (a) (other than section 12- 55) apart from subsection 12-1(1A) in Schedule 1 to that Act.

Note:    The payments covered are: payments to employees and company directors, payments to office holders, return to work payments, payments under labour hire arrangements, payments of annuities, payments of superannuation benefits, payments for termination of employment, payments for unused leave, benefit payments, compensation payments, payments specified by regulations and alienated personal services payments.

76    Mr Carmody initially submitted before the Tribunal that pension 2:

    could not be classified as “work and income support related withholding payments” for the purposes of s 45 because it was not a “superannuation income stream” under ITAA 97 s 307-70 as it does not meet the definition of “pension” in s 10 of the SIS Act; and

    was, when correctly classified, “residual capital value” in terms of rule 29 of the MSBS Trust Deed.

77    The Tribunal accepted the Trustee’s contention that pension 2 was a “superannuation income stream” under s 307-70 of the ITAA 97, and that in turn reg 12-80 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (TAA) imposed a corresponding obligation on the Trustee to withhold an amount from pension 2. In submissions before me, the Trustee elaborated on principles relevant to this point, in summary, as follows:

    Subdivision 12-C of the TAA concerns payments for retirement or because of termination of employment.

    Section 12-80 concerns payments that are a “superannuation income stream” or an “annuity” and requires amounts to be withheld from those amounts.

    Mr Carmody’s superannuation income stream commenced before 20 September 2007.

    “Superannuation income stream” is defined in reg 995-1.01 of the Income Tax Assessment Regulations 1997 (Cth). Relevantly reg 995-1.01(b) provides that “superannuation income stream” means an income stream that is an annuity or a pension within the meaning of the SIS Act and commenced before 20 September 2007.

    “Income stream” is not defined, however the term should be given its ordinary meaning, being a series of periodic payments relating to each other, payable over an identifiable period of time.

    Relevantly, “pension” is defined inclusively by s 10 of the SIS Act to mean “except in the expression old-age pension, includes a benefit provided by a fund, if the benefit is taken, under the regulations, to be a pension for the purposes of this Act”. This inclusive definition indicates that “pension” should otherwise have its ordinary meaning.

    The Macquarie Dictionary defines “pension” as “a fixed periodical payment made in consideration of past services, injury or loss sustained, merit, poverty, etc; an allowance or annuity; a regular income paid out of a superannuation fund”.

    Pension 2 was paid in consideration of injury rather than payment of a premium, and fell within the definition of “pension” rather than “annuity”.

    Pension 2 was payable under the MSBA, and was paid fortnightly in consideration of the injury suffered by Mr Carmody. It is clear that such payments are an income stream that is a pension.

    Section 12-85(a) of the TAA provides that an entity must withhold an amount from payments it makes to an individual which are, inter alia, a superannuation lump sum.

    It follows that if the payment to Mr Carmody is either a “superannuation income stream” or a “superannuation lump sum”, the payment will fall within the definition of “salary or wages” in s 4 of the CSRCA.

    Accordingly, payments by the Trustee to Mr Carmody under the MSBA are amounts from which an amount must be withheld under a provision of Subdiv 12-C of the TAA.

78    I accept this submission by the Trustee as correctly representing the legal position insofar as concerns pension 2; pension 2 falls within the definition of “work and income support related withholding payments”.

79    However, the argument that pension 2 does not fall within the definition of “work and income support related withholding payments” does not appear to have been maintained on appeal. Mr Carmody now submits that pension 1 does not meet the definition of “work and income support related withholding payments”. This is apparent from his written submissions of 21 August 2018 in the Federal Court where he contended as follows:

25.    The Applicant submits that the [Trustee] has acted illegally because the amounts they have taken from the Applicant are inclusive of payments that the CSC does not administer. The Special Rate of Pension does not meet the definition of "work and income support related withholding payments", because this payment is both tax exempt but also non assessable income under the Income Tax Assessment Act 1997. This payment is also "absolutely inalienable" under Section 125 of the VEA Act 1986. Therefore the [Trustee] cannot deduct money on the basis of income that is payable under another statute.

(emphasis added)

80    This submission was repeated in Mr Carmody’s written submissions of 11 June 2019 at [24].

81    The Trustee appeared to respond to this submission on the basis that it was made in relation to pension 2. That is evident from their arguments that provisions in the TAA and ITAA 97 require amounts to be withheld under a provision of sub-div 12-D (specifically 12-110(1)(c)) of the TAA from a payment made under the MSBA (i.e. pension 2). Pension 1 is paid under the VEA. The Trustee made no arguments in respect of whether pension 1 was tax exempt or non-assessable income under the ITAA 97.

82    Nevertheless, in my view the submission that pension 1 does not meet the definition of “work and income support related withholding payments” lacks merit.

83    To the extent that this argument on the part of Mr Carmody was not raised before the Tribunal, it cannot be said that the Tribunal erred in law in respect of its findings, such as to found an appeal to the Court from the determination of the Tribunal on this point and warrant orders disturbing the Tribunal’s findings.

84    Further, the notices the Child Support Agency sent to the Trustee that were referable to child support liability calculated upon pension 1, were sent pursuant to s 72A of the CSRCA. No notice was sent to the Trustee seeking to have the Trustee remit amounts from pension 1; the Trustee does not pay Mr Carmody pension 1. It is irrelevant whether pension 1 meets the definition of “work and income support related withholding payments” as it is a definition relevant to notices given under s 45 of the CSRCA.

85    Fifth, the Trustee is “a person who makes, or is liable to make, work and income support related withholding payments”. Mr Carmody has contended the Trustee did not “bear the cost”, nor was it “liable for the expense”, in relation to either pension 1 or pension 2, and therefore could not be the “employer” for the purposes of s 45 of the CSRCA. Mr Carmody submitted that the definition of “employer” seeks to identify the source of the income.

86    In my view, this is to misunderstand the definition of “employer”. The definition does not ask who bears the cost or the source of the income, it asks who makes the payment.

87     Mr Carmody claimed that, in relation to pension 2, s 13(b) of the MSBA was very clear in stating that pension 2 was not only paid from Consolidated Revenue, but also paid directly to him and did not pass through the Trustee at all. In this respect, Mr Carmody relied on the decision of the Administrative Appeals Tribunal in Hamilton v Commissioner of Taxation (2007) 67 ATR 235; [2007] AATA 1677 as authority for the proposition that the legal statutory source of his pension was the Consolidated Revenue fund.

88    It may well be that pension 2 originated in Consolidated Revenue, such that Consolidated Revenue bears the cost of pension 2. The Trustee accepted this principle. In Hamilton at [53] Downes J noted that the relevant pension was paid out of Consolidated Revenue, and that that was the statutory source of the payment, notwithstanding that the actual payments may pass through the Trustee. I note further the terms of ss 13(b) and 17 of the MSBA, which provide:

13. Employer Benefits

Where an employer benefit becomes payable under the Rules to a person who has ceased to be a member:

(a)    an amount equal to the funded employer benefit in relation to the person is payable by CSC to the Commonwealth; and

(b)    any benefit to which the person is entitled is payable to the person by the Commonwealth.

…

17. Appropriation

Any payment by the Commonwealth under this Part is to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

89    However, it is also apparent that the Trustee makes the payment of pension 2 to Mr Carmody in the terms contemplated by s 45 of the CSRCA. The Tribunal accepted the submission of the Trustee that it bore the legal responsibility to make fortnightly pension 2 payments to Mr Carmody, such that any legal action on behalf of Mr Carmody for reinstatement of pension 2 would be made against the Trustee rather than the Commonwealth. In this respect, I note s 29A(a) of the Governance of Australian Government Superannuation Schemes Act 2011 (Cth), which provides:

29A. Making payments on behalf of the Commonwealth

CSC may, on behalf of the Commonwealth, make payments under:

(a) each Act administered by CSC; and

…

90    Section 4 of the Governance of Australian Government Superannuation Schemes Act 2011 (Cth) defines “Act administered by CSC" (i.e., the Trustee) as including:

…

(d) the Military Superannuation and Benefits Act 1991; or

91    The Tribunal accepted that the Trustee made payments to Mr Carmody on behalf of the Commonwealth. In my view, no error of law is apparent from this conclusion.

92    In relation to pension 1, and Mr Carmody’s argument that it was paid by a previous employer, this is irrelevant in circumstances where no deduction has been sought from pension 1. The notice sent to the Trustee for the deduction of child support, which was calculated upon the income earned by Mr Carmody by receipt of pension 1, was sent pursuant to s 72A of the CSRCA. Section 72A is referable to any debtor of Mr Carmody and the “maximum notified deduction total” specified in the s 72A notice, not his employment arrangements or the context in which pension 1 is paid to him.

93    I am satisfied that there was no error of law in the finding of the Tribunal that the Trustee was the “employer” of Mr Carmody for the purposes of s 45 of the CSRCA.

4. The proper interpretation of s 72A of the CSRCA, and whether the Trustee was a person who held money for or on account of Mr Carmody.

94    The Tribunal found at [43] of its reasons as follows:

43.    The Complainant’s arguments in respect of the Trustee’s compliance with the CSA’s s72A notices, basically rest on the contention that the notice is targeted at a ‘person’ as in:

(1)    The Registrar may give written notice to a person:

(a)    by whom money is due or accruing, or may become due, to a child support debtor; or

(b)    who holds, or may subsequently hold, money for or on account of a child support debtor;

and the Trustee, not being a ‘person’ cannot comply with a s72A notice; however the Tribunal accepts and agrees with the Trustee’s response that the relevant definition of ‘person’ in the [CSRCA] is:

“person” includes a partnership and any Commonwealth, State or Territory public authority (whether incorporated or unincorporated).

and, given the Trustee is a body corporate, courtesy of Act 2, that its compliance with s72A is also fair and reasonable.

95    In summary, Mr Carmody submitted that:

    the s 72A notices were ineffective in relation to the Trustee because it was not a person who held money on behalf of Mr Carmody in respect of pension 1 or pension 2; and

    the Tribunal was in error in its understanding of Mr Carmody’s arguments before it – he did not submit that the Trustee was not a “person”, rather he submitted that it was not a person who held money on behalf of Mr Carmody because of the operation of s 13 of the MSBA.

96    In relation to Mr Carmody’s claim that the Tribunal erred in understanding him to have submitted that the Trustee was not a “person”, in his submissions before the Tribunal he stated:

Therefore in order for the [Trustee] to meet the definition of “person” for the purposes of a Section 72A notice, the [Trustee] must be a Commonwealth Authority that holds money on its own account in relation to Mr Carmody…

…since Mr Carmody is no longer a member of the fund, the [Trustee] does not hold any equity whatsoever on behalf of Mr Carmdoy. This renders [Trustee] unable to recognise or act upon a Section72A notice under the [CSCRA] as they are clearly not a third party who holds money on behalf of Mr Carmody. If not, then the [Trustee] does not meet the definition of a “person” as the [Trustee] is not a Commonwealth Authority, it is a Corporate Commonwealth entity.

(emphasis added)

97    It is clear that the applicant did, intentionally or otherwise, assert before the Tribunal that the Trustee did not meet the definition of “person” in s 72A of the CSRCA.

98    During the hearing, Mr Burns for Mr Carmody submitted as follows:

MR BURNS: The other issue ..... is that Mr Schulte had quite a lengthy submission in relation to 995-1.01 of the Tax Act, which, basically, in general terms, was an exploration into how the ATO would treat this particular payment. Without going into the nitty-gritties of what was actually said, I would then go back to the Hamilton v Commissioner of Taxation authority that we’ve put forward, and, at paragraph 53, what his Honour states there is it is on this underlying legal basis for the payment of the pension that taxation issues must be determined. So what that means, your Honour, is is that subsection 13(b) of the [MSBA] clearly states that this is a payment to the person by the Commonwealth.

And under the same guise of section 112 of the Superannuation Act, it clearly provides that a pension is to be paid out of the consolidated revenue, and that is the statutory source of the payment. So the statutory source of the payment, your Honour, is not found in the Income Tax Assessment Act. The statutory source is found in the [MSBA], and it is appropriated accordingly. But, as I say, his Honour actually goes on further to underpin this legal basis that the payment of the pension that taxation issues must be determined is this legal basis.

HER HONOUR: Okay.

MR BURNS: So that is what I would like to say about that particular issue. So what I’m sort of getting at is is that there is a difference between – just because the payment is paid by the consolidated revenue fund does not mean that it’s not a superannuation interest, or, for argument’s sakes, there was a reference in the tribunal’s decision in relation to a case called Campbell v the Superannuation Complaints Tribunal where Logan J had ruled that these invalidity benefits were a superannuation interest. And the reason that the tribunal stated that was because they thought that that was the founding basis of saying, well, it must be a payment for a fund.

And what our submission is, your Honour, is is they are completely and utterly two completely different things. And the definition of employer, the key qualification is not the term “tax withholding payments”, it’s the qualification which is who makes and is liable to make the payment.

HER HONOUR: Okay.

MR BURNS: So in – for argument’s sakes, your Honour, the Family Law Act defines a superannuation interest as an interest that a person has as a member of a fund. It’s a very small clause, so – and that’s what Logan J actually stated in the Campbell case, and that was the reason why he said it was a superannuation interest. The other – just quickly, whilst I’m on the subject of the Family Law Act, there is a very good example there, which is section 90XB, off the top of my head. What that clause in that Act ---

HER HONOUR: Sorry, of what?

MR BURNS: Of the Family Law Act 1976. It says this Act, sorry, this part overrules all other trust deeds and Acts, and this is the part that I was making reference to in my earlier submission, your Honour, about a person having a superannuation split under the Family Law Act. One of the big issues that the legislators had to get over was is that they needed a reference to say that that Act could override all other trust deeds so that they could implement the policy. And what we’re saying is is that that doesn’t occur in the Child Support Act. There’s no part of the Child Support Act that says that it overrules the other statutes that [the Trustee] are confined by.

And, as such, if we go back to the Governance of Australian Government Superannuation Schemes Act at section 3, which was on page 20 of our sort of handout where it talks about the objects of the Act. And it clearly provides, as I say, getting back to my earlier submission, I was talking about the restrictions that are actually placed upon [the Trustee], it clearly provides a definitive list of statutes that the powers of [the Trustee] are confined to, and the Child Support Act, or both Child Support Acts are not there. So, in other words, they have no powers whatsoever to – as far as the Child Support Act is concerned. They only have powers in relation to the [MSBA]. And so, really, an excursion into section 45, or section 72A, in that regard, would be moot.

HER HONOUR: Okay.

MR BURNS: Because the other part of it is, which was mentioned by the respondent, was is that they refer to their own – there was a definition of the word “person” in 72A. The key to that issue is is that when they say that – or they allege that they hold money on behalf of Mr Carmody, that connotation is actually the Commonwealth ---

HER HONOUR: Yes. I understand that point.

MR BURNS: --- and the Commonwealth is not a person.

HER HONOUR: All right. Thank you.

MR BURNS: So that should clear up that definition.

HER HONOUR: Okay.

MR BURNS: So that’s it from me, your Honour ---

(transcript pp 38-40) (emphasis added)

99    Section 72A of the CSCRA provides:

72A Registrar may collect debts from a third person

(1)    The Registrar may give written notice to a person:

(a)    by whom money is due or accruing, or may become due, to a relevant debtor; or

(b)    who holds, or may subsequently hold, money for or on account of a relevant debtor; or

(c)    who holds, or may subsequently hold money on account of some other person for payment to a relevant debtor; or

(d)    who has authority from some other person to pay money to a relevant debtor;

requiring that person to pay to the Registrar:

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

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

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

(1A)    A notice given under subsection (1) requires the notified person to continue to make payments in accordance with that subsection until the maximum notified deduction total is satisfied.

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

(2)    A person who refuses or fails to comply with a notice under subsection (1) commits an offence.

Penalty: 10 penalty units.

(2A)    Subsection (2) does not apply if the person has a reasonable excuse.

(2B)    Subsection (2) is an offence of strict liability.

(3)    A notice:

(a)    must specify a day, not being a day before the money becomes due or is held, on or before which the money is to be paid; and

(b)     may be varied by the Registrar specifying a later day for making a payment under the notice.

(4)    Subsection 4K(1) of the Crimes Act 1914 does not apply in relation to anything required to be done under subsection (1).

(5)    If the Registrar gives a notice under subsection (1), the Registrar must provide a copy of the notice to the relevant debtor.

(6)    A notice is taken to be provided under subsection (5) if the Registrar sends the notice to the last address of the person known to the Registrar.

(7)    A notice is taken to have been given to the Commonwealth, a State or a Territory if it is served on a prescribed person.

(8)    If a person is convicted of an offence against subsection (1), the court may, in addition to imposing a penalty on the person, order the person to pay to the Registrar an amount that is not more than the amount, or sum of the amounts (as the case may be), that the person refused or failed to pay to the Registrar.

(9)    A person who makes a payment in compliance with a notice under subsection (1) is taken to have made the payment under the debtor’s authority or the authority of any other person concerned and is indemnified in respect of that payment.

(10)     If:

   (a)    the Registrar gives a notice under subsection (1); and

(b)    before the person to whom the notice is given complies with it, payment of the amount due by the debtor is made;

the Registrar must immediately give the person written notice of that payment.

(11)    For the purposes of this section, where:

(a)    a person has paid money to a co‑operative housing society in respect of the issue of withdrawable shares in the capital of the society; and

(b)    the co‑operative housing society has not repaid the money;

the money is taken to be:

(c)    if the money is repayable on demand—due by the co‑operative housing society to the person; and

(d)    in any other case—money that may become due by the co‑operative housing society to the person.

(12)    For the purposes of this section, if, apart from this subsection, money is not due, or repayable on demand to a person unless a condition is fulfilled, the money is taken to be due, or repayable on demand (as the case may be), to the person even though the condition has not been fulfilled.

(13)    In this section:

co‑operative housing society means a society registered or incorporated as a co‑operative housing society or similar society under a law of a State or Territory.

person includes a partnership and any Commonwealth, State or Territory public authority (whether incorporated or unincorporated).

100    I find no error in the finding of the Tribunal that the Trustee is a “person” for the purposes of s 72A of the CSRCA. In relation to whether the Trustee was a person who held money on account of Mr Carmody, the Tribunal did not appear to address this issue directly. However, the Trustee submitted that the Tribunal addressed the issue indirectly at [40]-[41] of its reasons for decision:

40.    Finally, the Tribunal rejects the Complainant’s contention that because:

… Mr [Son] receives and is entitled to receive the payment [of pension 2] from the Commonwealth. Accordingly Mr [Son] does not receive his Invalidity Benefits [sic] from the [Trustee].

that the Trustee ‘does not meet the definition of “employer” under section 4 of the [CSRCA]’.

41.    Rather the Tribunal accepts the logic of the Trustee’s response in this regard:

8.    [Trustee] bears the legal responsibility, or to use the words of the [CSRCA], definition, “is liable to make” fortnightly pension payments to the Complainant. Put another way, if payment of Mr [Son’s] pension was to stop, any legal action on behalf of Mr [Son] for reinstatement of his pension would be made against the [Trustee], not the Commonwealth.

101    I also note paragraph [42] of the Tribunal’s reasons:

42.    A response, that in the Tribunal’s considered opinion, bears testimony to the adage that often, an ounce of factual commonsense is worth a pound of legal sophistry.

102    I understand the primary contention of Mr Carmody in respect of this point was that it was the Commonwealth, rather than the Trustee, which relevantly held moneys in respect of pension 2. To phrase the argument as requiring money to be held “in respect of pension 2” is to misconstrue s 72A. The money held does not need to be “in respect of” pension 2; that is not a requirement of s 72A.

103    The same logic applies to the argument that the Trustee did not hold money on behalf of Mr Carmody in respect of pension 1. The relevant question is whether the Trustee held any money, for any reason, for or on account of Mr Carmody. In the circumstances, the money the Trustee held was pension 2.

104    I have already found that, although pension 2 was sourced from Consolidated Revenue pursuant to s 17 of the MSBA, it was the Trustee which was both empowered, and bore the obligation, to pay Mr Carmody pension 2. Evidence of the precise steps whereby funds were appropriated from Consolidated Revenue for payment of pension 2 by the Trustee is not before me. However, I consider it was open to the Tribunal to accept that there were appropriations whereby the Trustee was placed in a position to pay a pension to persons in the position of Mr Carmody. The Tribunal found that the Trustee was liable to pay Mr Carmody his pension, and that Mr Carmody could properly bring legal action against the Trustee in respect of his pension in appropriate circumstances. In those circumstances, the Tribunal may be considered to hold money for or on account of Mr Carmody.

105    I am not persuaded there was legal error attendant on the findings of the Tribunal concerning the service of notices pursuant to s 72A of the CSRCA on the Trustee, and the Trustee’s compliance with those notices.

5. Whether the Trustee was legally allowed to comply with the 72A notices of the Child Support Agency by deducting amounts for child support referable to pension 1, and whether the Tribunal was correct to find that any dispute by Mr Carmody in relation to the question whether the calculation of the amount garnished exceeded the “protected earnings amount” applicable to s 46 of the CSRCA was a matter for him to take up with the Child Support Agency rather than with the Trustee

106    The Trustee submitted that, to the extent that Mr Carmody disputed the calculation of his child support liability as calculated by the Child Support Agency, this was a matter for him to take up with the Child Support Agency itself. I agree. Indeed, there is clear machinery in Parts VII and VIIA of the CSRCA empowering certain persons to object to certain decisions of the Registrar under the Child Support (Assessment) Act 1989 (Cth) and the CSRCA, and, if dissatisfied with a reconsideration of the decision, to apply to the Administrative Appeals Tribunal for review of the decision. This machinery was recently examined by the Full Court in BVG17 v BVH17 [2019] FCAFC 17.

107    It is unclear to me whether Mr Carmody has sought to pursue his rights of objection in respect of his child support obligations under the CSRCA. To the extent that he has not, it is difficult to see how the Trustee could reasonably refuse to comply with notices served on it by the Child Support Agency to make deductions from moneys it would otherwise pay to Mr Carmody.

108    Second, I reject Mr Carmody’s submissions that the Trustee has acted illegally because the amounts deducted by the Trustee are referable to pension 1. The manner by which the Child Support Agency calculated Mr Carmody’s obligation, or from whom the Child Support Agency sought to recover Mr Carmody’s child support debt, was not an issue for the Trustee. I reject Mr Carmody’s assertion that the Trustee should have questioned the Child Support Agency’s figures or its method of assessment.

109    The Trustee was informed by notice of Mr Carmody’s child support debt, and of the amount it was required to pay the Child Support Agency from pension 2. That the child support obligation sought by the s 72A notice may have been partially referable to pension 1 was irrelevant in terms of s 72A, and from the perspective of the Trustee. Insofar as I can ascertain, no notices were issued by the Child Support Agency pursuant to s 45 of the CSRCA in respect of any child support obligation referable to pension 1. However, for the purposes of s 45 of the CSRCA, the income from which the child support liability is calculated is also irrelevant. The submissions of the applicant suggest that the Child Support Agency was required to garnishee his child support obligation against each source of his income, proportionate to the amount that that income contributed to his total income (and thus calculation of child support liability). That proposition is not supported by the relevant legislation.

110    In relation to Mr Carmody’s assertion that the s 72A notices were served to enable the Trustee to deduct money over and above the protected earnings amount applicable to a s 45 notice and a s 46 deduction, I agree with the Tribunal that this issue was a matter to be raised with the Child Support Agency, more particularly under Parts VII and VIIA of the CSRCA. It was not for the Trustee to question notices provided to it pursuant to s 72A of the CSRCA.

6. Whether compliance with the s 45 or s 72A notices created an assignment of or a charge over Mr Carmody’s benefits.

111    It is unclear to me to what extent Mr Carmody made submissions to the Tribunal in respect of this issue. However, the Tribunal made findings referable to issues of possible assignment and charge over Mr Carmody’s benefits.

112    In particular, the Tribunal found that the compliance by the Trustee with the ss 45 and 72A notices contravened neither the prohibition against an assignment of benefit (pursuant to either reg 13.12 of the SIS Regulations or s 45 of the MSBA) nor the prohibition against creating a charge over benefits (pursuant to reg 13.13 of the SIS Regulations). The Tribunal noted the submissions of the applicant before it that claimed contravention of these provisions.

113    For completeness, the relevant regulations read as follows:

13.12 Assignments of superannuation interests

For the purposes of subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that, subject to regulation 13.15, the trustee of a fund must not recognise, or in any way encourage or sanction, an assignment of a superannuation interest of a member or beneficiary.

13.13 Charges over a member's benefits

(1) For the purposes of subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that, subject to regulation 13.15, the trustee of a fund must not recognise, or in any way encourage or sanction, a charge over, or in relation to a member's benefits.

(2) In this regulation:

"charge " does not include a specific charge if:

(a) the charge was exercised in respect of particular benefits of a member before the fund became a regulated superannuation fund or an approved deposit fund (as the case may be); and

(b) the trustee was permitted, under the Occupational Superannuation Standards Regulations or the Superannuation Industry (Supervision) (Transitional Provisions) Regulations, to recognise the charge.

(3) A payment split in respect of a member's interest in a superannuation fund is not a charge over or in relation to the member's benefits for subregulation (1).

(4) This regulation does not apply to a charge imposed under the Public Officers Superannuation Benefits Recovery Act 1988 (Qld) in relation to a member's benefits in the scheme established under the Superannuation (State Public Sector) Act 1990 (Qld).

114    Section 45 of the MSBA provides:

45. Assignment of benefits

No pension or other benefit payable under the Rules is capable of being assigned.

Assignment

115    In respect of whether there had been an assignment of any interest of Mr Carmody in relation to pension 2 by the Trustee to the Child Support Agency, the Tribunal found at [44] that:

    “Assignment” was a “transfer of an existing propriety right” and “propriety right” has been judicially defined as “the right to absolute ownership and financial interest in private property at common law”.

    The right to receive a superannuation benefit has not been taken from Mr Carmody and given to the Child Support Agency.

    In any event, if there had been assignment of part of the benefit, that assignment would occur by operation of law – namely the notice from the Child Support Agency – rather than a voluntary assignment by Mr Carmody.

116    A right to an income stream may be assigned by way of security, either in whole or in part, in order to discharge a debt (see for example discussion in Greg Tolhurst, The Assignment of Contractual Rights, 2nd edition, Bloomsbury, 2016 at 3.15). However, I am satisfied that the finding of the Tribunal that there was no assignment of a superannuation interest of Mr Carmody was correct in the following circumstances.

117    First, an assignment ordinarily involves a transaction whereby rights or liabilities are transferred – see for example Olsson v Dyson (1969) 120 CLR 365. In the present case, there was no transaction whereby Mr Carmody’s rights to pension 2 were transferred by either him or the Trustee to the Child Support Agency within the meaning of either s 45 of the MSBA or reg 13.12 of the SIS Regulations – rather an amount has been garnisheed by notices served by the Child Support Agency pursuant to the CSRCA: see Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13 at [27] per Gleeson CJ, [172] per Callinan J; Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 at [24] per the Full Court (Keane CJ, Besanko and Perram JJ).

118    Second, as a general proposition, a garnishee notice does not give rise to an assignment. As Kitto J explained in Hall v Richards (1961) 108 CLR 84 at 92:

The analogy in the case of a garnishee order is obvious. Such an order, though not working an assignment or giving the judgment creditor any proprietary interest in the debt, yet gives him positive rights with respect to it which a creditor having no more than a judgment does not possess ; not merely a negative right to prevent the judgment debtor from accepting payment of the debt or disposing of it, but positive rights for the recovery of what is owing on the judgment, namely a right to give a valid receipt and discharge for the money, and a right in case of non-payment to obtain execution against the garnishee…

(see also comments of French CJ, Gummow, Hayne, Heydon and Bell JJ in Bruton Holdings Pty Ltd (in liq) v The Commissioner of Taxation (2009) 239 CLR 346, [2009] HCA 32 at 352 [14]).

119    Third, reg 13.12 of the SIS Regulations contemplates that a trustee of a fund has a discretion in recognising, encouraging, or sanctioning an assignment of a superannuation interest of a member or beneficiary. Where the Trustee was served with notices by the Child Support Agency pursuant to ss 45 and 72A of the CSRCA, it was reasonable for the Trustee to take the view that it had no choice but to comply with those notices. This is particularly so where failure on the part of a person in the position of the Trustee to comply with notices served pursuant to these sections is an offence (ss 46, 72A(2) of the CSRCA).

120    Fourth, as the Tribunal observed, if there had been an assignment of Mr Carmody’s benefit under pension 2, it would have been by operation of law as a result of compliance by the Trustee with statutory notices under the CSRCA. It is debatable whether such an event would have constituted an assignment within the meaning of reg 13.12 and s 45 – see by way of analogy the principles discussed in Tichborne v Weir [1892] 67 LT 735 and Kirk v Sutherland [1949] VLR 33 at 37.

121    Finally, the garnishee notices served on the Trustee by the Child Support Agency pursuant to ss 45 and 72A of the CSRCA did not result in permanent deprivation of Mr Carmody of his rights in respect of pension 2. Once his child support debt was discharged, the Trustee would revert to paying him the amounts currently claimed by the Child Support Agency. This is inconsistent with the concept of assignment, which contemplates the transfer of the assignor’s right or interest such that that right or interest is removed from the assignor and acquired by the assignee (see Y.K. Liew, Guest on the Law of Assignment, 3rd edition, Sweet & Maxwell, 2018 at 1-01).

Charge

122    In relation to whether compliance with s 45 or s 72A of the CSRCA offended reg 13.13 of the SIS Regulations by creating a charge over Mr Carmody’s benefit in respect of pension 2, the Tribunal had regard to the definition of “charge” in reg 13.11 as including “a mortgage, lien or other encumbrance”. The Tribunal accepted the Trustee’s submission that the garnishee notices served by the Child Support Agency did not create security interests because, inter alia, they would not operate if Mr Carmody’s benefit ceased, and would not crystallise so as to give the Child Support Agency ownership of Mr Carmody’s benefit under pension 2.

123    No error of law is apparent from this conclusion. In this respect, I note comments of McPherson SPJ and Moynihan J in Relwood Pty Ltd v Manning Homes Pty Ltd (No 2) (1992) 2 Qd R 197 at 200-201 and 212, Santow J in Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 at 497-498, and Harrison J in Secure Funding Pty Ltd v Bettini [2011] NSWSC 557 at [20]. In particular, Harrison J observed in Bettini:

20.    Santow J in Blacktown Concrete Services adopted the reasoning of McPherson SPJ in Relwood. His Honour found that the view that a garnishee created an equitable charge was "inconsistent with the trend of authority", and that the only rights a judgment creditor obtained by a garnishee order were statutory rights. Santow J held that a garnishee order does not render the garnishor a secured creditor in relation to the attached debt: at 496F and 497D. I respectfully agree. In my view, Secure Funding is not a secured creditor for the purposes of s 58(5) of the Bankruptcy Act.

Conclusion

124    In my view, the Tribunal made no errors of law in its determination, and that determination ought be affirmed.

125    I will hear the parties in respect of costs.

Associate:

Dated:    11 March 2020