FEDERAL COURT OF AUSTRALIA Whittaker v Child Support Registrar [2002] FCA 1430 MARK ALAN WHITTAKER v THE CHILD SUPPORT REGISTRAR Q 130 OF 2002 DOWSETT J 24 OCTOBER 2002 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 130 OF 2002 BETWEEN: MARK ALAN WHITTAKER APPLICANT AND: THE CHILD SUPPORT REGISTRAR RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 24 OCTOBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 130 OF 2002 BETWEEN: MARK ALAN WHITTAKER APPLICANT AND: THE CHILD SUPPORT REGISTRAR RESPONDENT JUDGE: DOWSETT J DATE: 24 OCTOBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 I am presently considering an application for prerogative relief in respect of an application by the Child Support Registrar addressed to the applicant, seeking to obtain his tax file number. Section 16B and 16C of the Child Support (Registration and Collection) Act 1988 (Cth) (the "Collection Act") and ss 150B, 150C and 150D of the Child Support (Assessment) Act 1989 (Cth) (the "Assessment Act") authorise such a request. However the applicant submits that the request is inconsistent with the Privacy Act 1988 (Cth) and with provisions of the Taxation Administration Act 1953 (Cth) (the "Tax Administration Act"). It is also submitted that some provisions of the last-mentioned Act are invalid. 2 I will deal with the Constitutional question first. Reliance is placed upon s 55 of the Constitution, which provides in part: Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. 3 Subsection 8WA(1) of the Tax Administration Act provides: A person must not require or request another person to quote the other person's tax file number. 4 Subsection 8WA(1AA) provides for certain exceptions. One such exception is where the request is made in connection with the exercise of powers or performance of functions pursuant to an obligation imposed by a taxation law or a law of the Commonwealth referred to in par 202(ga) of the Income Tax Assessment Act 1997 (Cth) (the "Tax Assessment Act"). That paragraph relates to the facilitation of the administration of the Assessment Actand the Collection Act. Thus s 8WA has no apparent application for present purposes. Similar considerations apply to s 8WB of the Tax Administration Act. However the applicant submits that the exception provisions do not relate to matters of taxation and that s 55 of the Constitution prohibits their enactment in a law which imposes taxation. The short answer to that is that neither the Tax Administration Act, nor the Tax Assessment Act, in fact, imposes taxation. In any event, a challenge to the validity of ss 8WA and 8WB would inevitably result in their failing in their entirety, in which case there would be no continuing prohibition upon the use of tax file numbers. That is obviously not an outcome which would meet the needs of the present applicant. 5 The applicant also relies upon the provisions of s 17 of the Privacy Act. That section requires that the Privacy Commissioner issue guidelines concerning the collection, storage, use, and security of tax file numbers. Guidelines have been issued. However it is made clear in, for example, guideline 2.1, that any prohibition does not extend to uses which are authorised by taxation, assistance agency or superannuation law. When the guidelines were issued, the Collection Act and the Assessment Act were administered by the Commissioner of Taxation, and so "taxation law" is defined to mean an Act of which the Commissioner of Taxation has the general administration, including the Collection Act, and the Assessment Act. The Commissioner no longer has this responsibility. It may be that there is now a certain inappropriateness in the guidelines, but the intention is tolerably clear. 6 Section 202 of the Tax Assessment Act discloses that one of the purposes for the introduction of tax file numbers was to facilitate the administration of the Assessment Act and the Collection Act. The guidelines should not be construed so as to interfere with the achievement of that purpose. The application will be dismissed. The applicant should pay the respondent's costs of the application, including reserved costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 21 November 2002 The Applicant appeared in Person Counsel for the Respondent: Mr M Eliadis Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 October 2002 Date of Judgment: 24 October 2002