Editors --- "Eligibility for baby bonus: temporary assessment orders" [2013] SocSecRpr 15; (2013) 15(2) Social Security Reporter, Article 8

• BILLINGTON and the SECRETARY to the DFHCSIA
• Background
• The issue
• Arguments
• Formal decision

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Eligibility for baby bonus: temporary assessment orders

BILLINGTON and the SECRETARY to the DFHCSIA

Federal Court of Austraila

Decided: 22nd July 2013 by Logan J.

Background

Under s.36 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act), a person is eligible for the baby bonus payment if, among other things, they have an ‘FTB child’ as defined in the Family Assistance Act.

Essentially, by s.22 of the Family Assistance Act, the person must have a child in their care for whom they have legal responsibility and the child must not be in the care of someone else who has legal responsibility for the child.

Billington lived in Queensland, but gave birth to a son at the Tweed Hospital in New South Wales at 6.07pm on 30 March 2011. She remained in hospital, as did her son, until 4 April 2011. On 5 April 2011 she claimed the baby bonus.

But at 6.02pm on 31 March 2011, the day after her son was born, a Queensland magistrate had made a temporary protection order under the Queensland Child Protection Act 1999 which, if valid, transferred legal responsibility for her son to the head of the Queensland Department of Community Services until 3 April 2011. A second order extended the earlier order until 4 April 2011, and the child was then placed in foster care. Billington had no contact with him from then on.

Billington’s baby bonus claim was rejected. An Authorised Review Officer found that she was entitled to one day of baby bonus, namely 30 March 2011 when her child was still legally in her care. The Social Security Appeals Tribunal affirmed that decision and Billington then appealed to the Administrative Appeals Tribunal (AAT).

The AAT decided that Billington was entitled to two days of baby bonus for 30 March and 31 March 2011 because the first temporary protection order was made late in the day on 31 March. The AAT decided that while she was in hospital, Billington did in fact care for her child, but she was not entitled to the baby bonus after 31 March 2011 time as she was no longer legally responsible for the child because of the temporary protection orders.

On 3 September 2012 Billington appealed out of time to the Federal Court. She needed to be granted an extension of time, as an appeal must be filed within 28 days of receiving the AAT’s decision. An appeal must be on a question of law (s.44 of the Administrative Appeals Tribunal Act 1975 (Cth)). Billington was granted an extension of time.

The issue

On appeal Billington argued, in substance, that she was entitled to baby bonus while she was in hospital and up until her son was placed in foster care on 4 April

2011. The Court treated this as raising the question of law of whether the effect of the temporary protection orders was to transfer legal responsibility for her son from her to the head of the Queensland Department of Community Services.

The Court itself then raised a further issue. If the child was born in New South Wales and had never even entered Queensland at the time the temporary protection orders were made, then how could a Queensland magistrate make an order with respect to that child? As the Court pointed out, the equivalent NSW legislation, the Children and Young Persons (Care and Protection) Act 1998, applied to children present in New South Wales, whether or not they ordinarily lived there, so Billington’s child was potentially subject to the NSW child protection regime.

This in turn raised issues under the Commonwealth Constitution, which were:

• whether the Queensland Parliament could make laws which operated outside Queensland; and

• the effect of s 118 of the Constitution which requires each State to give ‘full faith and credit’ to the laws of another State.

As a result, Billington found herself involved in a case which involved some little tested aspects of federal constitutional law. The Court issued s.78B notices under the Judiciary Act

1903 and the Queensland Attorney- General intervened.

Arguments

Turning first to the extra-territorial effect of the Queensland Child Protection Act 1999, the Court applied the general rule that a State may legislate with respect to a person or thing outside a State if there is a relevant connection to the State, even if remote. The Court found that the State legislation was capable of, and did in fact, apply to Billington’s child because her child’s place of residence and domicile was the same as his mother’s, namely Queensland. This fact supplied a sufficient connection to Queensland.

This led the Court to conclude that Billington’s child was subject to both the Queensland and NSW child protection regimes, although no order had in fact been made under the NSW law. Even though s.118 of the Constitution requires each State to give ‘full faith and credit’ to another State’s laws, this did not resolve the question of what to do when the laws of two States overlap.

There was no binding authority on this point. The Court reviewed academic opinion and various dicta, and decided that a test of ‘operational inconsistency’ was appropriate. This means that the Court will give extra-territorial effect to a State law unless there is an unavoidable conflict with another State law in fact.

As any conflict with NSW child protection law was only potential, the Court gave effect to the Queensland law and decided that its effect was to bring Billington’s legal responsibility for her child to an end.

Formal decision

Billington’s appeal was dismissed. No order was made as to costs at the time of judgment. [M.B.]

Court:

Federal Court of Austraila