Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2020 [2020] AUSStaCSBSD 197 (20 November 2020)

• Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2020
• Significant matters in delegated legislation22

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Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2020

Purpose	This bill is part of a package which seeks to amend the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 in order to strengthen and simplify the foreign investment framework, while continuing to offset the cost of the package by simplifying existing fee arrangements
Portfolio	Treasury
Introduced	House of Representatives on 28 October 2020

Significant matters in delegated legislation^[22]

1.24 Item 7 of Schedule 1 seeks to replace existing Part 2 of the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (the Act) in relation to the imposition and amounts of fees payable under Part 6 and 6A of the Act, which are imposed as taxes.^[23] The fee amount will be set in accordance with regulations made under proposed subsection 6(1). The regulations may specify an amount or method for determining an amount,^[24] including different amounts or methods for different kinds of fees, different kinds of persons liable to pay a kind of fee or different kinds of circumstances giving rise to the liability to pay a kind of fee.^[25] A fee imposed under proposed section 6 of the Act by regulations cannot exceed $1 million.^[26]

1.25 One of the most fundamental functions of the Parliament is to impose taxation.^[27] The committee's consistent scrutiny view is that it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax. Therefore, where a fee is imposed as a tax, the committee considers that guidance in relation to the level of a charge should be included on the face of the primary legislation.

1.26 In this regard, the committee welcomes the inclusion in proposed subsection 6(3) of a cap on the amount of the fees that may be charged under the regulations. However, the committee considers that guidance in relation to the method of calculation of fees under proposed section 6 should be provided on the face of the primary legislation, to enable greater parliamentary scrutiny.

1.27 The committee requests the Treasurer's advice as to whether guidance in relation to the method of calculation of the fees in proposed section 6, which are imposed as taxes, can be included on the face of the bill.

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[22] Schedule 1, item 7, proposed sections 5 and 6. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[23] Proposed section 5.

[24] Proposed paragraph 6(2)(a).

[25] Proposed paragraph 6(2)(b).

[26] Proposed subsection 6(3).

[27] This principle has been a foundational element of our system of governance for centuries: see, for example, article 4 of the Bill of Rights 1688: 'That levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal'.