Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012 [F2012L02505]-Concluded matters [2013] AUSStaCSDLM 200 (16 May 2013)

• Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012 [F2012L02505]
• (a) Retrospectivity
• (b) Drafting

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Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012 [F2012L02505]

Purpose	Amends the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007 to reflect changes to certain taxing laws
Last day to disallow	15 May 2013
Authorising legislation	Commonwealth Places (Mirror Taxes) Act 1998
Department	Treasury

ISSUES:

(a) Retrospectivity

Section 12(2) the Legislative Instruments Act 2003 provides that an instrument that commences retrospectively is of no effect if it would disadvantage the rights of a person (other than the Commonwealth) or impose a liability on a person (other than the Commonwealth) for an act or omission before the instrument's date of registration. While this instrument commenced on the day after its registration, its effect is to amend the principal instrument to give various provisions of the principal instrument effect from either 1 July 2008 or 25 June 2010. The committee will generally make inquiries to ensure that retrospective effects do not act to a person's disadvantage or detriment [the committee sought further information from the Treasurer].

(b) Drafting

The footer to the instrument contains the words 'Draft 7'. In such cases, the committee generally inquires as to whether the version of the instrument it has received is in fact the final approved version [the committee drew the issue to the attention of the Treasurer].

TREASURER'S RESPONSE:

In response to issue (a), the Treasurer advised that paragraph 8(5)(a) of the Commonwealth Places (Mirror Taxes) Act 1998 expressly authorises a modification to take effect from an earlier date and, as such, subsection 12(2) of the Legislative Instruments Act 2003 has no effect in relation to such instruments. The notice did not impose any new obligations or liabilities other than those that existed in tax laws that had application under the Commonwealth Places (Mirror Taxes) Act 1998. Consequently, there did not appear to be any circumstances where a person (other than the Commonwealth) would be disadvantaged for an act or omission before the instrument's date of registration.

In relation to issue (b), the Treasurer advised that it is the standard procedure in Western Australia for an instrument with 'Draft' in the footer to be presented to the Western Australian Governor for making. The reference to 'Draft' is then removed when the regulations are published in the Western Australian Gazette. However, Western Australian officials were advised that an instrument registered on the Federal Register of Legislative Instruments (FRLI) must be identical in all aspects to that made by the minister or delegate; the word 'Draft' was therefore left in the footer of the instrument registered on FRLI.

COMMITTEE'S RESPONSE:

The committee thanks the Treasurer for his advice and has concluded its interest in the matter. However, the committee notes that, in the interests of clarity, administrative processes supporting the preparation and approval of a registered instrument should ensure that the registered instrument is unambiguously a copy of the final instrument as approved by the relevant instrument maker.