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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Commonwealth Places
(Mirror Taxes) Bill 1998
No. ,
1998
(Treasury)
A Bill
for an Act to provide for the application of State taxing laws in relation to
Commonwealth places, and for related purposes
9801520—1,067/4.3.1998—(15/98) Cat.
No. 97 2713 2 ISBN 0644 516461
Contents
A Bill for an Act to provide for the application of State
taxing laws in relation to Commonwealth places, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Commonwealth Places (Mirror Taxes) Act
1998.
This Act commences on the day on which it receives the Royal
Assent.
In this Act, unless the contrary intention appears:
applied law means the provisions of a State taxing law that
apply in relation to a Commonwealth place in accordance with this Act.
authority, in relation to a State, means any of the
following:
(a) the Governor, a Minister or a member of the Executive Council of the
State;
(b) a court of the State;
(c) a person who holds office as a member of a court of the
State;
(d) a body created by or under the law of the State;
(e) an officer or employee of the State, or of a body referred to in
paragraph (d).
Commonwealth place means a place referred to in paragraph
52(i) of the Constitution, other than the seat of government.
corresponding applied law, in relation to a State taxing law,
means an applied law that corresponds to the State taxing law.
corresponding State taxing law, in relation to an applied
law, means the State taxing law to which the applied law corresponds.
excluded by paragraph 52(i) of the Constitution means
inapplicable by reason only of the operation of section 52 of the Constitution
in relation to Commonwealth places.
in relation to, when used in relation to a
Commonwealth place, means in, or in relation to, the Commonwealth
place.
modifications includes additions, omissions and
substitutions.
proceedings means any proceedings, whether civil or criminal
and whether original or appellate.
scheduled law, in relation to a State, means a law that is
specified in Schedule 1 in relation to the State, but does not include any part
of such a law that is prescribed by the regulations for the purposes of this
definition.
State law, in relation to a State, means:
(a) any law in force in the State, whether written or unwritten;
and
(b) any instrument made or having effect under a law referred to in
paragraph (a);
but does not include a law of the Commonwealth, whether written or
unwritten, or an instrument made or having effect under such a law.
State taxing law, in relation to a State, means the
following, as in force from time to time:
(a) a scheduled law of the State;
(b) a State law that imposes tax and is prescribed by the regulations for
the purposes of this paragraph;
(c) any other State law of the State, to the extent that it is relevant to
the operation of a law covered by paragraph (a) or (b).
This Act has effect only to the extent that it is an exercise of the
legislative powers of the Parliament under the following provisions of the
Constitution:
(a) paragraph 52(i);
(b) section 73;
(c) paragraph 77(iii);
(d) paragraph 51(xxxix), so far as it relates to paragraph 52(i), section
73 or paragraph 77(iii).
This Act binds the Crown in each of its capacities, but does not make the
Crown liable to be prosecuted for an offence.
(1) In this section:
excluded provisions, in relation to a State taxing law, means
provisions of that law to the extent that they are excluded by paragraph 52(i)
of the Constitution.
(2) Subject to this Act, the excluded provisions of a State taxing law, as
in force at any time before or after the commencement of this Act, apply, or are
taken to have applied, according to their tenor, at that time, in relation to
each place in the State that is or was a Commonwealth place at that
time.
(3) Subsection (2) does not extend to the provisions of a State taxing law
in so far as it is not within the authority of the Parliament to make those
provisions applicable in relation to a Commonwealth place.
(4) An applied law has effect subject to any modifications under section
8.
(5) Except as provided by modifications under section 8, nothing in this
Act has the effect of creating an office, body, court or other
tribunal.
(6) This section does not have effect in relation to a State unless an
arrangement is in operation under section 9 in relation to the State.
(1) An applied law does not have effect in relation to an amount that
would (apart from this subsection) have become due for payment before 6 October
1997 under the applied law.
(2) In determining whether an amount is or was payable under an applied
law, it must be assumed that all obligations of any relevant person that arose
before 6 October 1997 have been fully and promptly complied with.
(3) An applied law does not have effect in relation to an amount that
would (apart from this subsection) have become due for payment as stamp duty on
an instrument made before 6 October 1997.
(4) In determining whether an amount is or was payable under an applied
law relating to stamp duty, it must be assumed that:
(a) all relevant instruments made before 6 October 1997 were lodged for
assessment of stamp duty; and
(b) the stamp duty (if any) on those instruments was assessed and
paid.
(1) The regulations may prescribe modifications of any applied
law.
(2) The Treasurer of a State may, by notice in writing, prescribe
modifications of the applied laws of the State, other than modifications for the
purpose of overcoming a difficulty that arises from the requirements of the
Constitution.
(3) A notice under subsection (2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(4) Modifications may be made under this section only to the extent that
they are necessary or convenient:
(a) for the purpose of enabling the effective operation of an applied law
as a law of the Commonwealth; or
(b) for the purpose of enabling an applied law to operate so that the
combined tax liability of a taxpayer under:
(i) the applied law; and
(ii) the corresponding State taxing law;
is as nearly as possible the same as the taxpayer’s liability would
be under the corresponding State taxing law alone if the Commonwealth places in
the State were not Commonwealth places.
(5) Modifications under this section:
(a) may be expressed to take effect from a date that is earlier than the
date on which the modifications are notified in the Gazette;
and
(b) may deal with the circumstances in which the modifications apply, and
with matters of a transitional or saving nature.
(6) To the extent of any inconsistency, modifications under subsection (1)
prevail over modifications under subsection (2).
(1) The Governor-General may make an arrangement with the Governor of a
State in relation to the exercise or performance of a power, duty or function
(not being a power, duty or function involving the exercise of judicial power)
by an authority of the State under the applied laws of the State.
(2) Where such an arrangement is in force, the power, duty or function may
or must, as the case may be, be exercised or performed accordingly.
(3) The Governor-General may arrange with the Governor of a State for the
variation or revocation of an arrangement made under this section in relation to
the State.
(4) An arrangement, variation or revocation under this section must be
made by instrument in writing, a copy of which must be published in the
Gazette.
(1) Within the limits of their several jurisdictions, the courts of a
State are invested with federal jurisdiction in all matters arising under an
applied law as having, or as having had, effect in relation to a Commonwealth
place. For this purpose, limits means limits of any kind, whether
as to subject matter or otherwise, but does not include any limitation that
exists by reason of a place being a Commonwealth place.
(2) The jurisdiction conferred by subsection (1) in relation to matters
arising under an applied law is to be exercised in accordance with the applied
law.
(3) Among other things, modifications under section 8 may modify an
applied law so that the applied law, as modified, makes provision for and in
relation to investing a court of a State with federal jurisdiction, whether
within the limits of its jurisdiction or otherwise.
(4) The jurisdiction with which courts are invested by subsection (1) or
by modifications under section 8, is invested subject to the restriction in
subsection (5) of this section, but not subject to any other conditions or
restrictions.
(5) If a State law prohibits any appeal from such a court, then an appeal
does not lie to the High Court from a decision of that court unless the High
Court grants special leave to appeal.
(6) Nothing in this Act affects the operation of section 38 of the
Judiciary Act 1903.
(7) Unless the High Court gives special leave to appeal, an appeal does
not lie to the High Court from a judgment, decree, order or sentence
of:
(a) a Justice of the High Court; or
(b) a federal court other than the High Court; or
(c) a court of a State or Territory;
if any ground relied upon in support of the appeal involves a question as
to the operation or interpretation of section 52 of the Constitution in relation
to a place (not being the seat of government).
(1) Subject to this Act:
(a) any proceedings under an applied law (core proceedings)
must be instituted and conducted in the same manner as though they were
proceedings under the corresponding State taxing law; and
(b) any other proceedings in relation to the core proceedings (including
declining to proceed further in a prosecution) must also be taken as though the
core proceedings were proceedings under the corresponding State taxing
law.
(2) The trial on indictment of an offence against an applied law must be
by jury.
If proceedings have been commenced under a State taxing law and the court
is satisfied that:
(a) the State taxing law is excluded by paragraph 52(i) of the
Constitution; and
(b) an applied law corresponds to the State taxing law;
then the proceedings must be continued as though they had been commenced
under the applied law.
In any proceedings under an applied law, an objection must not be allowed
merely on the ground that proceedings have been commenced, or are pending, under
the corresponding State taxing law.
(1) This section applies to an appeal from a judgment, decree, order or
sentence of a court of a State or Territory in proceedings under a State taxing
law, except where the appeal is an appeal to the High Court.
(2) If the court is satisfied that:
(a) the State taxing law is excluded by paragraph 52(i) of the
Constitution; and
(b) an applied law corresponds to the State taxing law;
then the court must deal with the appeal as though:
(c) the proceedings in relation to which the appeal was brought had been
brought under the applied law; and
(d) the judgment, decree, order or sentence had been given or made in
proceedings brought under the applied law.
(1) If a person is convicted under an applied law of a State, then an
authority of the State may exercise or perform the same powers and functions in
relation to the convicted person as the authority would have been empowered to
exercise or perform under the State laws of the State if the offence had been
committed in the State but not in relation to a Commonwealth place.
(2) Nothing in this section affects any power or function of the
Governor-General.
(1) In proceedings under an applied law (or purporting to be under an
applied law), a certificate in writing given by an authorised person about any
of the following matters relating to land is evidence of the matters stated in
the certificate:
(a) the ownership of the land, or of an estate or interest in the land, on
a date or during a period specified in the certificate;
(b) the existence and ownership of a right in respect of the land, on a
date or during a period specified in the certificate.
(2) A document that purports to be a certificate referred to in subsection
(1) is taken to be such a certificate, and to have been duly given, unless the
contrary is proved.
(3) In this section:
authorised person means a person who is a delegate, in
respect of any power or function, under section 139 of the Lands Acquisition
Act 1989.
If:
(a) an act or omission gives, or gave, to a person a cause of action under
an applied law and also gives, or gave, to the person a cause of action under
the corresponding State taxing law; and
(b) the cause of action under the corresponding State taxing law has been
extinguished;
then the cause of action under the applied law is also
extinguished.
If:
(a) something purports to have been done in relation to a Commonwealth
place under a State taxing law; and
(b) the State taxing law is excluded by paragraph 52(i) of the
Constitution; and
(c) an applied law corresponded to the State taxing law;
then that thing is taken to have been done under the applied law.
(1) This section applies to an instrument or other writing that relates to
an act, matter or thing that has a connection with a Commonwealth
place.
(2) In so far as:
(a) the instrument or writing contains a reference to a State taxing law;
and
(b) the State taxing law is excluded by paragraph 52(i) of the
Constitution; and
(c) an applied law corresponds to the State taxing law;
the reference has effect as if it were a reference to the applied
law.
(1) Subject to this Act, no Commonwealth law (other than an applied law)
applies in relation to:
(a) any applied law; or
(b) anything done under an applied law.
(2) Subsection (1) has effect subject to any modifications prescribed by
the regulations.
(3) To the extent that:
(a) a Commonwealth law applies to a State taxing law, or to things done
under a State taxing law; and
(b) there is a corresponding applied law;
the Commonwealth law also applies to the applied law and to things done
under the corresponding applied law.
(4) If:
(a) a law of the Commonwealth (other than an applied law) contains a
reference to a State taxing law; and
(b) an applied law corresponds to the State taxing law;
then the reference is taken to include a reference to the applied
law.
(1) This section applies to a provision (the exempting
provision) of a Commonwealth law (other than an applied
law) that is expressed to exempt a person or body from taxes or charges, or
specified taxes or charges, under a law of the Commonwealth.
(2) Unless it expressly provides otherwise, the exempting provision is not
to be treated as applying to taxes or charges under an applied law.
(1) This section applies if an applied law ceases, or ceased, to have
effect in relation to a place at a particular time because the place ceases, or
ceased, to be a Commonwealth place at that time.
(2) The following things are not affected:
(a) the previous operation of the applied law before that time;
(b) any right, privilege, obligation or liability acquired, accrued or
incurred under the applied law;
(c) any penalty, forfeiture or punishment incurred in respect of an
offence against the applied law;
(d) any investigation, legal proceeding or remedy in respect of any right,
privilege, obligation, liability, penalty, forfeiture or punishment referred to
in paragraph (b) or (c).
(3) Any penalty, forfeiture or punishment referred to in paragraph (2)(c)
may be imposed as if the applied law had not ceased to have effect.
(4) An investigation, legal proceeding or remedy referred to in paragraph
(2)(d) may be instituted, continued or enforced as if the applied law had not
ceased to have effect.
(5) This section is not intended to affect the operation of a State
law.
(1) Notwithstanding anything in the terms of an applied law, there must be
credited to the Consolidated Revenue Fund all amounts received under an applied
law that are required by section 81 of the Constitution to be so credited.
(2) The Commonwealth is liable to pay to a State amounts equal to amounts
that are credited to the Consolidated Revenue Fund as mentioned in subsection
(1) in relation to an applied law of the State.
(3) Amounts payable by the Commonwealth under subsection (2) are to be
reduced by amounts paid by the Commonwealth under any applied law of the State
concerned. For this purpose, amounts paid by the Commonwealth does
not include amounts paid by way of tax.
(4) The Consolidated Revenue Fund is appropriated for the purpose
of:
(a) payments under this section; and
(b) payments by the Commonwealth under an applied law.
(5) The Financial Management and Accountability Act 1997 does not
apply to amounts received under an applied law.
(1) This section applies if a State taxing law ceases, or ceased, to have
effect in relation to a place at a particular time because the place becomes, or
became, a Commonwealth place at that time.
(2) The following things are not affected:
(a) the previous operation of the State taxing law before that
time;
(b) any right, privilege, obligation or liability acquired, accrued or
incurred under the State taxing law;
(c) any penalty, forfeiture or punishment incurred in respect of an
offence against the State taxing law;
(d) any investigation, legal proceeding or remedy in respect of any right,
privilege, obligation, liability, penalty, forfeiture or punishment referred to
in paragraph (b) or (c).
(3) Any penalty, forfeiture or punishment referred to in paragraph (2)(c)
may be imposed as if the State taxing law had not ceased to have
effect.
(4) An investigation, legal proceeding or remedy referred to in paragraph
(2)(d) may be instituted, continued or enforced as if the State taxing law had
not ceased to have effect.
(5) This section is not intended to affect the operation of any State
taxing law.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Subsection 48(2) of the Acts Interpretation Act 1901 does not
apply to regulations made under this Act.
Note: See section 3.
Each of the following laws of New South Wales is a scheduled
law:
(a) Debits Tax Act 1990;
(b) Duties Act 1997;
(c) Pay-roll Tax Act 1971;
(d) Stamp Duties Act 1920.
Each of the following laws of Victoria is a scheduled
law:
(a) Debits Tax Act 1990;
(b) Financial Institutions Duty Act 1982;
(c) Pay-roll Tax Act 1971;
(d) Stamps Act 1958.
Each of the following laws of Queensland is a scheduled
law:
(a) Debits Tax Act 1990;
(b) Pay-roll Tax Act 1971;
(c) Stamp Act 1894.
Each of the following laws of Western Australia is a scheduled
law:
(a) Debits Tax Act 1990;
(b) Debits Tax Assessment Act 1990;
(c) Financial Institutions Duty Act 1983;
(d) Pay-roll Tax Act 1971;
(e) Pay-roll Tax Assessment Act 1971;
(f) Stamp Act 1921.
Each of the following laws of South Australia is a scheduled
law:
(a) Debit Tax Act 1994;
(b) Financial Institutions Duty Act 1983;
(c) Pay-roll Tax Act 1971;
(d) Stamp Duties Act 1923.
Each of the following laws of Tasmania is a scheduled
law:
(a) Financial Institutions Duty Act 1986;
(b) Pay-roll Tax Act 1971;
(c) Stamp Duties Act 1931.