Commonwealth Numbered Regulations - Explanatory Statements

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ADMINISTRATIVE APPEALS TRIBUNAL REGULATIONS (AMENDMENT) 1997 NO.156

STATUTORY RULES 1997 No. 156

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

Administrative Appeals Tribunal Act 1975

Administrative Appeals Tribunal Regulations (Amendment)

Subsection 70(1) of the Administrative Appeals Tribunal Act 1975 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

The Law and Justice Legislation Amendment Act 1997 amends the Act to establish the Small Taxation Claims Tribunal. When hearing and determining an application for the review of certain taxation decisions, the Taxation Appeals Division of the Administrative Appeals Tribunal (AAT) is to be known as the Small Taxation Claims Tribunal, with a lower application fee than the standard application fee in the AAT.

The purpose of the Regulations is to make amendments to the existing Regulations to provide for the operation of the Small Taxation Claims Tribunal.

Details of the Regulations are as follows:

Regulation 1 - Commencement

Regulation 1 provides for the Regulations to commence on the day on which items 1, 3, 4, 5 and 6 of Schedule 1 of the Law and Justice Legislation Amendment Act 1997, which provide for the establishment of the Small Taxation Claims Tribunal. commence. The day on which these items commence has been proclaimed to be 1 July 1997.

Regulation 2 - Amendment

Regulation 2 provides for the Administrative Appeals Tribunal Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 19 (Prescribed fees - general)

Regulation 3 amends existing regulation 19, which provides for prescribed fees in the AAT.

Existing subregulation 19(1) provides for an application fee of $500 payable for lodging an application for a review of certain decisions. Subregulation 3.1 provides, in effect, that existing subregulation 19(1) does not apply to a relevant taxation decision within the meaning of Part IIIAA of the Act.

Existing subregulation 19(5) provides that if two or more applications relate to the same application and may, in the opinion of the Registrar or a Deputy Registrar, be conveniently heard before the AAT at the same time, the Registrar or a Deputy Registrar may order that only one fee is payable for those applications. Officers of the AAT also include District Registrars who, because of the decentralised administrative practices of the AAT, undertake much of the work of the AAT. Subregulation 3.2 provides, in effect, that a District Registrar may also order, under subregulation 19(5), that only one fee is payable.

Existing paragraph 19(6)(c) provides that the application fee is not payable if the Registrar or Deputy Registrar waives payment of the fee because it would cause financial hardship to the person. Subregulation 3.3 provides, in effect, that a District Registrar may also waive payment of the application fee under paragraph 19(6)(c).

Regulation 4 - New Regulation 19AA

Regulation 4 inserts new regulation 19AA, which provides for prescribed fees for taxation decisions under Part IIIAA of the Act.

New subregulation 19AA(1) provides that in new regulation 19AA the terms 'lower application fee' and 'standard application fee' have the respective meanings given in section 24AA of the Act. Therefore, 'lower application fee' means the fee payable in respect of an application for the review of a relevant taxation decision when the application is heard and determined in the Small Taxation Claims Tribunal and 'standard application fee' means the fee payable in respect of an application for the review of a relevant taxation decision when the application is heard and determined in the Taxation Appeals Division of the AAT.

New subregulation 19AA(2) provides that, for Part IIIAA of the Act, which provides for the Small Taxation Claims Tribunal the amount of the lower application fee is $50 and the amount of the standard application fee is $500, which is the same as the usual application fee payable for most applications to the AAT.

New subregulation 19AA(3) provides that, if a lower application fee or a standard application fee is payable, it must be paid before the lodgment of the application to which it relates. A similar provision applies to application fees payable under regulation 19.

Section 24AD of the Act provides for the situation where the Small Taxation Claims Tribunal considers that the tax in dispute is not less than the determined amount.

Subsection 24AD(1) of the Act provides that the AAT may make an order declaring, in effect, that the Small Taxation Claims Tribunal is not to hear and determine the application. Paragraph 24AD(2)(b) of the Act provides that, if such an order is made, the Taxation Appeals Division, when hearing and determining the application, is not to be known as the Small Taxation Claims Tribunal and that the AAT must not proceed to hear and determine the application until the applicant pays an additional fee in respect of the application, equal to the difference between the standard application fee and the lower application fee. Paragraph 24AD(2)(c) of the Act provides that, if the additional fee is not paid within the period directed by the AAT or, if no such direction is given, within the prescribed period, the AAT may dismiss the application

New subregulation 19AA(4) provides that for the purposes of paragraph 24AD(2)(c) of the Act, if no direction is given by the AAT, the prescribed period is 28 days from the making of the order.

New subregulation 19AA(5) provides that a Registrar, a District Registrar or a Deputy Registrar may order that only one application fee is payable in relation to two or more applications if they relate to the same applicant and the Registrar, a District Registrar or a Deputy Registrar considers that they may be conveniently heard together. This provision is the same as existing subregulation 19(5), which applies to prescribed fees generally.

New subregulation 19AA(6) provides for the circumstances in which a lower application fee, a standard application fee or an additional fee is not payable. These are the same as the existing exemption and waiver provisions that apply to prescribed fees generally, under existing subregulation 19(6).

New subregulation 19AA(7) provides that if a lower application fee has been waived under paragraph 19AA6(c) and the AAT subsequently makes an order that has the effect of making an additional fee payable, then the additional fee that would be payable is taken to be waived. This will ensure that the AAT does not have to consider a second application for waiver of fees on the grounds of financial hardship when, given that the first application has been successful, the second application would also be successful.

New subregulation 19AA(8) provides that a person who has paid a lower application fee, an additional fee or a standard application fee is entitled to a refund of the fee if the fee was not payable. A similar provision applies to prescribed fees generally.

New subregulation 19AA(9) provides, in effect, that if the AAT certifies that proceedings have terminated in a manner favourable to the applicant and the applicant has paid a standard application fee or an amount equivalent to a standard fee, then the applicant is entitled to a refund of the amount paid. A similar provision applies to prescribed fees generally. However, the effect of this provision is that a person who has only paid a lower application fee, without also paying an additional fee, is not entitled to an automatic refund if the proceedings have terminated in a manner favourable to the applicant.

New subregulation 19AA(10) provides, in effect, that if the AAT orders that two or more applications may be heard together and the applicant has paid an amount totalling more than a standard application fee, the applicant is entitled to a refund of the difference between the standard application fee and the total amount of the fees paid. This will ensure that an applicant does not have to pay more than one standard application fee for applications that are heard together.

Regulation 5 - Regulation 19A (Biennial increases in fees)

Existing regulation 19A provides for the biennial increase in the fee prescribed by regulation 19.

Subregulation 5.1 provides, in effect, that the biennial increase will also apply to the fees prescribed by new regulation 19AA.

Regulation 6 - Regulation 19B (Calculation of increase)

Existing regulation 19B provides for the method of calculating the biennial increase in fees, as provided for by existing regulation 19A.

Existing subregulation 19B(1) includes a definition of fee. Subregulation 6.1 provides, in effect, that the definition of fee includes the fees prescribed by regulation 19AA.

Existing subregulation 1913(2) includes a definition of fee, used in the formula that provides for the calculation of the biennial increase in fees. Subregulation 6.2 amends this definition to clarify that the fees to be used as the basis for CPI adjustment are the fees that are payable at the end of the relevant period.

Regulation 7 - Regulation 20 (Review by the Tribunal)

Existing subregulation 20(1) provides that an application may be made to the AAT for review of a decision by a Registrar or a Deputy Registrar not to waive, under paragraph 19(6)(c), payment of a fee.

Regulation 3 amends paragraph 19(6)(c) so that a decision regarding waiver of fees under paragraph 19(6)(c) can also be made by a District Registrar. Subregulation 7.1 inserts "a District Registrar" into existing subregulation 20(1), so that an application may also be made to the AAT for review of a decision of a District Registrar not to waive payment of a fee.

Regulation 4 inserts new paragraph 19AA(6)(c), which provides that a Registrar, a District Registrar or a Deputy Registrar may waive payment of prescribed fees under Part IIIAA of the Act. Subregulation 7.2 provides, in effect, that an application may also be made to the AAT for review of a decision, under paragraph 19AA(6)(c), not to waive payment of a fee.

Existing subregulation 20(2) provides that, if the Registrar or a Deputy Registrar makes a decision under subregulation 20(1), a notice must be given to the person liable to pay the fee containing terms of the decision, written reasons for the decision and a statement to the effect that application may be made to the AAT for review of the decision. Subregulation 7.3 inserts "a District Registrar" into existing subregulation 20(2), to provide for AAT review of decisions made by a District Registrar.

These Regulations commence on the day on which items 1, 3, 4, 5 and 6 of Schedule 1 of the Law and Justice Legislation Amendment Act 1997, which provide for the establishment of the Small Taxation Claims Tribunal, commence.

Items 1, 3, 4, 5 and 6 of Schedule 1 of the Law and Justice Legislation Amendment Act 1997 have been proclaimed to commence on 1 July 1997.