AIR PASSENGER TICKET LEVY (COLLECTION) BILL 2001 Explanatory Memorandum
AIR PASSENGER TICKET LEVY (COLLECTION) BILL 2001
1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AIR PASSENGER TICKET
LEVY (COLLECTION) BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the Honourable
John Anderson, MP)
AIR PASSENGER TICKET LEVY (COLLECTION) BILL 2001
OUTLINE
The purpose of the Bill is to collect a passenger ticket levy on all
flights that originate in Australia and which have been delivered to passengers
in Australia. The proceeds of this levy will fund a scheme for the payment of
entitlements to the former employees of companies in the Ansett group following
the insolvency of Ansett Airlines and a number of its subsidiaries.
The
Bill assigns liability for payment of the levy to passengers although flight
operator's will be responsible for the collection of levy payable by passengers.
It establishes a process for levy collection, including provision for the
lodgement of levy returns, penalty payments and the distribution of any surplus
levy. It also is provides for the appointment of inspectors to carry out
functions relating to the levy collection.
Under the accompanying Air
Passenger Ticket Levy (Imposition) Bill 2001, the levy is imposed at a rate
of $10 per ticket.
Financial Impact Statement
The levy collected will fund the expenditure authorised under the Bill.
The amount of levy collected annually will depend on the rate of levy and the
number of tickets issued. Nonetheless, the maximum amount of expenditure that
is authorised under the Bill is $500 million. Over its life the legislation
will be cost neutral.
AIR PASSENGER TICKET LEVY (COLLECTION) BILL 2001
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1: Short Title
The short title of the Act is to be the Air Passenger Ticket Levy
(Collection) Act 2001.
Clause 2: Commencement
The Act will commence, or is taken to have commenced, on 1 October
2001.
Clause 3: Crown to be bound
Under this clause, the Crown in right of each State and the Commonwealth
will be bound by the Act but the Crown will not be liable to be prosecuted in
respect of any offence under the Act.
Clause 4: Application of Criminal Code
This clause provides that Chapter 2 of the Criminal Code applies
to offences against this Act. Chapter 2 of the Criminal Code provides
for general principles of criminal responsibility.
Clause 5: Definitions
This clause sets out a number of definitions used in the Bill. In
particular:
Air passenger ticket means a ticket or
electronic record, which allows a person to travel as a passenger on a
particular flight or flights;
Australian flight means a
flight that takes off from a place in Australia whether the flight is to another
place in Australia or a place outside Australia (ie irrespective of its
destination); and
Operator of a flight by an aircraft means
the person who conducts, or offers to conduct, an air service by use of the
aircraft for that flight. This definition covers both flights conducted by an
operator in their own right and code-share arrangements where the flight
operator has sold a ticket on a flight conducted by another operator.
Clause 6: What constitutes one air passenger ticket for the purposes of this Act
For the purposes of the Act, the following are to be treated as one air
passenger ticket:
• an air passenger ticket that covers flights provided by two or more operators (ie this is not treated as a separate air passenger ticket for each of those operators); and
• where two or more air passenger tickets meet the
circumstances provided for in the regulations.
Clause 7: Purpose of the levy
The purpose of the levy is to meet the costs associated with the Special
Employee Entitlements Scheme for Ansett group employees.
Clause 8: Extension of the Act to the external Territories
The Act will apply to all of Australia's external Territories.
Part 2 – Liability for levy
Clause 9: Air passenger ticket levy
This clause imposes a levy on any air passenger ticket that is:
• purchased on or after on 1 October 2001; and
• used for travel on a regular public transport operation provided the
flight takes off from a place in Australia (regardless of its destination) on or
after 1 October 2001 and before midnight of the last day of the final levy
month.
The levy is not payable on paper tickets for which a passenger
takes possession outside of Australia. This is intended to minimise the impact
of the levy on international inbound tourism.
The regulations may also
provide for exemptions. In some circumstances, a ticket needs to be issued or
electronic record made however no fare is paid, eg transport of airline crew and
personnel.
In most cases the levy is payable for the first flight that a
passenger uses on a ticket. This is known as the relevant flight.
The regulations may provide that in some circumstances the levy is payable for
more than one flight per ticket. In this case each of those flights will be a
relevant flight.
Clause 10: Passenger liable to pay levy
Under this clause, the passenger who uses an air passenger ticket on a
relevant flight is liable to pay the levy.
Clause 11: Flight operator responsible for collection of levy payable by passengers
This clause provides that the operator of an Australian flight must
collect the levy payable by a passenger except where an operator has reasonable
grounds to believe that an amount has already been collected to cover the levy,
eg a travel agent may collect the levy when the ticket is issued. Where a
flight is conducted under a code share arrangement, the operator
who sells the ticket will be responsible for collecting the levy. Thus, under
most code share ticketing arrangements, the actual operator of the code share
flight will generally be able to assume that the ticketing operator has
collected the levy.
In addition, the person who receives the levy for the
passenger must remit the payment to the Commonwealth by the due
date.
Failure to comply with either of these requirements is an offence
that attracts a maximum penalty of one penalty
unit.[1] Note that this penalty
applies for every payment that the operator or agent fails to collect or
remit.
Clause 12: Final levy month
The Minister may, by publishing a notice in the Gazette, notify a
month as the final levy month after which no levy will be payable. This notice
is irrevocable. No liability to pay levy can arise after the final levy
month.
Part 3 - Collection of levy
Clause 13: Returns
Under this clause, flight operators conducting regular public
transport in Australia are liable to lodge a return in an approved form
to the Secretary of the Department.[2]
The return must be lodged by the last day of the month following the month in
which the flight commenced.
Clause 14: Due date for payment
The levy is payable to the Commonwealth by the last day of the month
following the month in which the flight commenced. In practice, payment will be
made to the Commonwealth by the operator as the receiver of the
funds. While the levy is imposed on the passenger, provisions of clause 11
(which make the operator responsible for the collection of the levy) mean that
the payment will in practice be made to the operator by the time
of the relevant flight.
Clause 15: Recovery of levy
This clause contains provisions to facilitate the recovery by the
Commonwealth of unpaid levy. The Commonwealth can recover unpaid levy as a debt
due to it. In addition, a statement or averment by person on behalf of the
Commonwealth, who seeks to recover unpaid levy, will be regarded as prima facie
evidence of the matters stated or averred.
Clause 16: Refund of overpayment of levy
If a passenger overpays an amount of levy, the person who collects that
amount must refund it, eg a passenger who cancels a non refundable ticket would
be entitled to a refund of the levy. Where travel is cancelled but a new flight
is ticketed, the levy paid on the original flight could be transferred to the
new flight.
Part 4 – Miscellaneous
Clause 17: Authorised officers’ powers to seek information
Under this clause an authorised officer may require a person to give him
or her specified information on the receipts of levy amounts, the payment of
these amounts on behalf of the passengers to the Commonwealth and other
information related to the collection of the levy. The notice must be in
writing and may require a statutory declaration to verify the
information.
An authorised officer may be the Secretary, an employee of
the Department or a person belonging to a Commonwealth authority.
Clause 18: Access to premises etc.
Subclause (1) provides for the functions of an inspector in relation to
'levy-related' documents.[3]
Subclause (2) provides that an inspector may have access to premises, with the
consent of the occupier, for the purposes of exercising those functions. Under
subclause (3), an inspector may apply to a Magistrate for a warrant authorising
the inspector to search premises. Subclause (4) authorises the Magistrate to
issue a search warrant to the inspector if he or she is satisfied that there are
reasonable grounds, and that the warrant is reasonably required. Subclause (5)
empowers the inspector to exercise his or her functions upon entering premises.
It is an offence under subclause (6) for a person to obstruct or hinder an
inspector.
Clause 19: Appointment of inspectors
The Secretary may appoint inspectors who must be a person employed by the
Commonwealth, a State or Territory. The inspector must comply with any
directions of the Secretary when exercising powers or performing functions under
the Act. The Secretary must issue all inspectors with identity cards and these
must be carried at all times when an inspector is exercising powers or
performing functions under this Part.
Clause 20: Offences
Under subclause (1) failure to lodge a return under clause 13 will be an
offence. It also an offence to fail to provide information under the Act or
regulations. These are both offences of strict liability, however, they do not
apply if the person has a reasonable excuse. In addition, a person is not
excused from giving information on the ground that self-incriminating, however
that information is not admissible in criminal proceedings other than those
offence proceedings under subclause (1).
Clause 21: Delegation
The Minister or the Secretary will be able to delegate any or all of
their powers under the Act to a person holding or performing the duties of a
Senior Executive Service employee in the Department. The delegate must comply
with any directions from the Minister or the Secretary (as the case may be) in
the exercise of those powers or functions.
Clause 22: Special Employee Entitlements Scheme for Ansett group employees
The Workplace Relations Minister will be able to determine a Scheme for
the payment of certain entitlements to the former employees of companies in the
Ansett group following the insolvency of Ansett Airlines and a number of its
subsidiaries.
The determination may specify the companies and
entitlements covered by the Scheme and the terms on which payments are
made.
The Workplace Relations Minister may authorise payments in
connection with the Scheme, including payments:
• to an entity so that it can repay money it has borrowed to cover payments under the Scheme; and
• under a Commonwealth guarantee in relation to the entity’s
borrowings.
The Workplace Relations Minister may also authorise payment
of Commonwealth costs associated with the levy and the Scheme.
The
maximum amount appropriated under this provision is $500 million.
Clause 23: Distribution of surplus levy
Where the Minister is satisfied that more levy has been received by the
Commonwealth than will be required for the purpose of the levy - ie to meet the
costs of the Scheme under clause 23 - the Minister may determine a scheme for
the distribution of the surplus. The scheme must be prescribed in the
regulations and the surplus must be distributed in accordance with that
scheme.
Clause 24: Reports by Minister
Under this clause the Workplace Relations Minister must prepare a report
at the end of each reporting period that sets out details of the following:
• payments authorised by the Workplace Relations Minister during the reporting period under clause 22;
• the activities during the reporting period of any company that were activities in respect of which the company received payments under clause 22; and
• distributions of surplus levy under clause 23 during the reporting period.
The Workplace Relations Minister must table a copy of the report in each
House of Parliament. Under clause (3) the reporting period will initially be
the five months ending on 31 March 2002 and thereafter the 12 months ending on
31 March of subsequent years.
Clause 25: Regulations
The Governor General may make regulations under the Act. In particular,
under subclause (2), regulations may be made on:
• the manner of payment of the levy;
• the repayment of overpayments;
• the records that persons are required to keep on air passenger tickets and the use of those tickets for Australian flights;
• information that persons are required to provide on air passenger tickets and the use of those tickets for Australian flights;
• the form of warrant for section 18; and
• the fines (not exceeding 10 penalty units) for offences under the regulations.
[1] Under the Crimes Act
1914 one penalty unit is $110 for an individual or $550 for a body
corporate.
[2] Under the Acts
Interpretation Act 1901, this will be the Department administering the act
which is expected to be the Department of Transport and Regional
Services
[3] ‘Levy-related
documents’ are any documents relating to matters in respect of which levy
is payable.