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1996
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
CUSTOMS AND EXCISE
LEGISLATION
AMENDMENT BILL (NO. 2)
1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Industry, Science and Tourism,
the
Honourable John Moore,
MP)
79979 Cat.
No. 96 5659 6 ISBN 0644
48084X
CUSTOMS AND EXCISE LEGISLATION AMENDMENT BILL (No. 2)
1996
OUTLINE
The Bill gives effect to the announcements made in the
1996-97 Budget to amend the provisions of the Customs Act 1901 and the
Excise Act 1901 relating to the Diesel Fuel Rebate Scheme.
The
amendments contained in the Bill fall into 3 broad categories, as
follows:
a) amendments restricting eligibility in the "mining operations"
category following consultation with the mining industry;
b) amendments to
address recent Federal Court and Administrative Appeals Tribunal (AAT) decisions
in the "mining operations" category; and
c) amendments to improve
accountability under the Scheme, and to assist in reducing expenditure under the
Scheme due to misuse (modernisation amendments)
The amendments in
particular provide as follows:
a) Amendments restricting
eligibility in the "mining operations" category
The amendments
in particular relate to the following issues;
Vehicles not
exceeding 3.5 tonnes Gross Vehicle Weight (GVW)
An amendment will
exclude from "mining operations" all eligibility in respect of vehicles not
exceeding 3.5 tonnes g.v.w., except for the following:
The only 3.5
tonne vehicles which are to be exempted from this amendment are those which
are
(a) extensively modified for use underground, while they are so
used; and
(b) fork-lifts, tractors and front-end loaders, and other similar
prescribed vehicles (Item 11 on page 8 of the Bill; and Item 21, new
paragraph (y) on page 11 of the Bill refers).
Certain Off-Site
activity to be ineligible
By agreement with the Mining Industry,
amendments are contained in the Bill to narrow (but not completely eliminate)
the eligibility of certain activities described in paras (c) to (w) of the
definition of "mining operations". Generally speaking, the narrowing of
eligibility is achieved by making the activity ineligible where it is conducted
off-site, but retaining eligibility where the activity is conducted "on-site".
Affected activities are:
· reactivation of carbon for use in the
beneficiation of ores bearing gold (Item 16, pg. 9 of the Bill
refers);
· searching for ground-water (Item 7, pg. 9 of the
Bill refers);
· construction or maintenance of groundwater
facilities - (Item 17, pg. 9 of the Bill
refers);
· construction and maintenance of storage dams (Item
18, pg. 10 of the Bill refers);
· construction and
maintenance of tailings dams - no restriction is being imposed on such dams
(Item 18, pg. 10 of the Bill refers);
· construction and
maintenance of environmental water containment dams - no restriction is being
imposed (Item 18, pg.10 of the Bill
refers)
· service maintenance or repair of transport
networks (Item 20, pg. 10 of the Bill
refers).
Exclude Sea Transport
The Bill will exclude
the transport by sea of all minerals or ores being minerals (Item 14,
pg. 9 of the Bill refers).
Off-Site Rail, Sea And Public Road
Use
The Bill will exclude the transportation, by any means, of
people, equipment or goods to or from the place or places where any of the
operations mentioned in any of the paragraphs (a) to (w) of those definitions
occurs, other than transport involved in activities specified in paragraphs
(c), (n) or (s) of the definition of mining operations (item 21, new para
(z), pg. 11 of the Bill refers).
Quarrying
The Bill
includes an amendment to tighten and reinforce the Government's policy that
quarrying and dredging operations are not eligible for rebate (Item 21, new
para (x), pg. 11 of the Bill refers).
b) Amendments to address
Federal Court and AAT Decisions
The DAMPIER SALT
decision
This decision has wide budgetary implications for the
Scheme, because of the way the Court allowed certain operations conducted by an
applicant for its own subjective economic reasons, to be rebatable. The Federal
Court found that rebate was payable until a miner had produced an economically
saleable product. Obviously, on this analysis, the point at which rebate ceases
could between miners who seek to recover the same mineral. Amendments in the
Bill will provide objective certainty of the point at which rebatable activity
ceases (Item 10 - new definition of "beneficiation", pgs. 7 and 9 of the Bill
refer).
The DYNO WESFARMERS decision
This case
involved consideration of travel undertaken by a specialised explosives truck on
public roads, covering average distances of 150km each way between the
explosives depot and mining sites to undertake what was agreed to be mining
operations at those sites. The AAT held that diesel fuel used in the course of
this on-road activity was rebatable.
Amendments in the Bill will
completely exclude all activity on public roads from eligibility in the "mining
operations" category (Item 6, pg. 4 of the Bill refers).
The
TEMCO decision
In this case the AAT held that the beneficiation
process extended to include a process whereby the recovered ore was transformed
into an alloy. The Bill will exclude from eligibility any process which
produces a man-made or synthetic substance (Item 12 - definition of
"minerals", pg. 8 of the Bill refers).
c) accountability and
administrative modernisation amendments
A range of amendments are
proposed in this area to improve accountability under the Scheme, and assist in
reducing expenditure under the Scheme due to overpayments.
The proposals
address the major areas of improvement highlighted by the recent performance
audit into the Scheme by the Australian National Audit Office. In particular,
the amendments provide for the following;
i) self-assessment
provisions;
ii) revised obligations imposed on diesel fuel claimants to
retain and create documents which will substantiate claims
relating to diesel fuel rebate;
iii) revised powers for the ACS to
inspect those documents; and
iv) a new penalty regime, with deterrent
penalties for claims which could result in overpayments or where such
overpayments occur, and an administrative penalty
option.
i) SELF-ASSESSMENT PROVISIONS
The Bill provides
that a person who applies for diesel fuel rebate, represents, by the
making of the application:
- that the person possesses such documents
and information as are necessary to substantiate the particulars of the
claim;
- that those documents and information will be available for
inspection for a period of 5 years after the making of the claim;
- that
the applicant is responsible for the information contained in or referred to in
that claim, and that that information is correct; and
- that Customs may
rely upon the correctness of the information contained in or referred to in the
claim, in whole or in part, for the purposes of paying diesel fuel rebate
(Item 7, new subsection 164(1D) on pg. 5 of the Bill
refers).
ii) OBLIGATIONS TO RETAIN AND CREATE
DOCUMENTS
The current legislation requires a person who applies for
diesel fuel rebate to keep all relevant rebate documents that come into the
applicant's possession for a period of 5 years after the
application.
The Bill proposes to clarify this obligation by detailing
specific types of documents which will need to be kept, and the systems or
methodology employed for eligibility estimates.
The documents required
to be retained are to be all those documents which relate to the
purchase, retention, use and disposal of diesel
fuel, and that are necessary to enable the ACS to be satisfied of the
correctness of a DFRS claim. This proposal is somewhat wider than the present
provision (Item 36, new subsection 240A(2) on pg. 25 of the Bill
refers).
In addition, the Bill includes an amendment to require an
applicant to maintain, or create and maintain, appropriate diesel fuel records
to support applications for rebate. These records will include:
- in
relation to a claim which contains or refers to estimates or apportionment -
documents setting out the details of those estimates or
apportionment;
- in relation to a claim concerning diesel fuel used in a
vehicle or vessel - such log-books or diaries as are necessary to show the use
of diesel fuel in that vehicle or vessel (Item 36, new subsection 240A(2)
paragraphs (c) and (f) on pg. 25 of the Bill refers).
The Bill also
provides a power for Customs to seek from a person who has lodged a claim for
diesel fuel rebate, information concerning that person's business or operations
in respect of which the person generally claims diesel fuel rebate.
Where a person fails to provide such information in response to such a
request, the person ceases to have any entitlement to rebate until he or she so
complies.
- This provision is required to enable Customs to gather the
data necessary to implement and maintain a "risk management" approach to claims
processing, the lack of which has attracted criticism from the ANAO (Item 7,
new subsections 164(1F) and (1G) on pgs. 5 and 6 of the Bill
refer).
iii) AUDIT POWERS, INCLUDING INSPECTION OF
DOCUMENTS;
The Bill proposes the repeal of the current audit powers
for the Scheme (Sections 214A and 99A of the Customs Act 1901 and Excise Act
1901 respectively; items 30 and 15 of Schedule 1 and 2 of the Bill on pages
23 and 43 refer), and their replacement with more extensive audit
provisions, to cater in particular for the self assessment
arrangements.
The new provision in the Bill (new section 164AC on
pages 17-21 of the Bill refers) confers powers on authorised officers
conducting audits to substantiate entitlements for rebate to, amongst other
things,
a) require the applicant to demonstrate the method, or the
operation of any record keeping or accounting system, employed in arriving at
the particulars or estimates included in the application and in the related
diesel fuel records;
b) conduct testing of the record keeping or
accounting system referred to in paragraph (a) in order to determine the
accuracy of the system in arriving at those particulars or
estimates;
c) require the applicant, within a period notified by the
authorised officer (whether in a notice under subsection (1) or otherwise) to
make available for inspection by the officer diesel fuel records that
substantiate the entitlement to rebate applied for under the
application;
d) examine, make and retain copies of, or take and retain
extracts from, any records made available in accordance with a requirement under
paragraph (c);
e) examine any premises, whether indicated by the
records themselves or by the applicant, where diesel fuel the subject of the
application has been, or is, used or stored;
f) examine any receptacle
in which diesel fuel the subject of the application has been stored, or is
stored, and to inspect, take and retain samples of, any fuel stored in
it;
g) board and examine any vessel, or to examine any vehicle or
machine, in the control of the applicant, in which diesel fuel the subject of
the application has been used or is used, and to examine, take and retain
samples of, any fuel in that vessel, vehicle or machine; and
h) require
the applicant to answer any questions concerning the diesel fuel the subject of
the application.
The Bill provides that Customs may at any time within
five years after an application for rebate, notify a person of an intention to
conduct an audit under these provisions in relation to that application.
This provision will fix the moment of commencement of an audit, for the
purposes of determining the period within which the claimant may make a
voluntary admission concerning any overclaims or errors in the claim
(new
section 164AB on pg. 16 of the Bill refers).
iv) NEW PENALTY
REGIME
As a result of concerns expressed by the Australian National
Audit Office on the effectiveness of current penalty arrangements, the Bill
proposes a new penalty structure, as follows:
. The most serious
offences involve those situations where a claimant knowingly or recklessly
obtains or retains rebate that is not payable (see proposed paragraph 234(1)(c))
or knowingly or recklessly makes a false or misleading statement (see paragraph
234(1)(d)). These are mens rea offences and contravention of paragraph
234(1)(c) results in a maximum penalty of 3 times the amount of rebate obtained
or retained by the commission of the offence (see paragraph 234(2)(b)), whilst
contravention of paragraph 234(1)(d) results in a maximum penalty of $5,000 and
twice the rebate to which there is no entitlement (see subsection 234((4)).
. The next level of penalty is in relation to the strict liability offences
(where no intention need be proven, just the fact of the overclaim), in two
circumstances
- new section 164A, (item 25 on pgs. 12 and 13
of the Bill refer)
This is the first of the two new strict
liability offences, to replace Section 164A of the Act relating to a failure to
notify Customs of any one of the 3 events which renders one ineligible for
rebate (sale or other disposal, use in an otherwise indicated manner, or
loss)
The penalty is an amount not exceeding 100% of the "overclaim".
- new subsection 164AC(8) (item 25 on pg. 19 of the Bill
refers)
This is the second of the new strict liability offences, to
cover the sanction for a failure to substantiate an entitlement to rebate via
the new audit powers of diesel fuel records.
The penalty is again 100%
of the "overclaim".
. The last level of penalty introduces a more
flexible administrative penalty option than that currently existing in the Act,
which gives Customs an option to apply an administrative penalty to both of the
strict liability offences, at 20% of the "overclaim" (new paragraphs 164AA(2)(b)
and (c), Item 25 on pgs. 13-14 of the Bill refers). The administrative
penalty is akin to a traffic infringement notice, ie. if the person on whom the
notice is served elects not to pay , then they might be proceeded against in
Court for the strict liability offence. If the offence is proven though, a
penalty of up to 5 times the amount of the administrative penalty they chose to
forego is available to the Court.
FINANCIAL IMPACT
STATEMENT
The amendments proposed in the Bill are expected to result
in the following savings to the revenue, in present dollar
values:
a) amendments restricting eligibility in the "mining
operations" category
Savings of around $35m per annum are estimated
from these changes.
b) amendments to address recent AAT and Federal
Court decisions
The amendments are designed to contain expansion in
the Scheme and not designed to achieve savings. Failure to introduce these
changes however could result in additional outlays of up to $100m per
annum.
c) amendments to improve accountability under the Scheme and
its administration
Savings of around $25m per annum are estimated
from these measures.
CUSTOMS AND EXCISE AMENDMENT BILL (NO. 2) 1996
NOTES ON CLAUSES
Clause 1 - Short Title
This
clause provides for the Act to be cited as the Customs and Excise Amendment
Act (No. 2) 1996.
Clause 2 - Commencement
Subclause (1)
provides that, subject to subsections (2) and (5), the Act commences upon Royal
Assent.
Subclause (2) provides that the items of Schedule 1 (other than
item 29) and Schedule 2 (other than item 14) commence on a day or days to be
fixed by Proclamation. Schedule 1 contains the proposed amendments to the
Customs Act 1901 (Customs Act) and Schedule 2 contains the proposed
amendments to the Excise Act 1901 (Excise Act).
It is expected
that items 6, 10 to 21, 23 and 24 of Schedule 1 and item 6 of Schedule 2, which
contain the amendments to the eligibility provisions for mining operations, will
be proclaimed to commence as soon as practicable after this Act receives the
Royal Assent. It is expected that the remaining items of Schedule 1 (other than
item 29) and Schedule 2 (other than item 14), which contain the modernisation
provisions in relation to the Diesel Fuel Rebate Scheme, will be proclaimed to
commence after a suitable period has elapsed to allow persons to be properly
informed of their entitlements and obligations under the new provisions.
Subclause (3) provides that if a provision of the Act does not commence
under subsection (2) within 6 months after the day on which this Act receives
the Royal Assent, it is taken to have commenced on the first day after the end
of that period. Therefore, if a Proclamation is not made under subsection (2),
the amendments in Schedule 1 and Schedule 2 shall commence 6 months after the
day on which the Act receives the Royal Assent.
Subclause (4) provides
that item 29 of Schedule 1 commences immediately after the commencement of item
28 of that Schedule under subsection (2) or (3). This amendment is a technical
amendment only, which will renumber current section 165A of the Customs Act
(which is being amended by item 28 of Schedule 1) as section 164AF and locate it
before current section 164B.
Subclause (5) provides that item 14 of
Schedule 2 commences immediately after the commencement of item 13 of that
Schedule under subsection (2) or (3). This amendment is a technical amendment
only, which will renumber current section 80A of the Excise Act (which is being
amended by item 13 of Schedule 2) as section 78AG and locate it before current
section 79.
Clause 3 - Schedule(s)
This clause
is the formal enabling provision for the Schedules to the Act, providing that
each Act specified in a Schedule (in this case the Customs Act and the Excise
Act) is amended in accordance with the applicable items of the Schedule.
The clause also provides that the other items of the Schedules have effect
according to their terms. This is a standard enabling clause for transitional,
savings and application items in amending legislation (items 42 and 43 of
Schedule 1 and items 27 and 28 of Schedule 2 refer).
Schedule 1 - Amendment of the Customs Act
1901
Items 1, 2 and 3
Definitions
These Items
insert new definitions into subsection 4(1) of the Act for the purposes of the
Diesel Fuel Rebate Scheme.
diesel fuel rebate is defined as
rebate payable respect of diesel fuel under section 164 ;
diesel
fuel rebate application is defined as an application for diesel fuel
rebate made under section 164;
diesel fuel records is
defined as records, including records in documentary form, that are required to
be maintained, or created and maintained under section 240A, for the purposes of
the new audit provisions (new section 164AC, item 25 of Schedule 1
refers).
Item 4 - Modernisation
This Item inserts
new subsection 164(1AA) into section 164. This subsection is a "table of
contents" provision for section 164, inserted by the draftsman to assist readers
to interpret this lengthy provision, as part of the "plain English" drafting
policy.
The "table of contents" provided by new subsection (1A) is as
follows;
- particular uses of diesel fuel that provide an entitlement to
rebate, found in subsection (1) - paragraph (a)
- matters
relating to the making of applications for diesel fuel rebate - found in
subsections (1A) to (1D) inclusive, (3) and (4) - paragraph
(b)
- the adoption by the Chief Executive Officer (CEO) of the
applicant's "self assessment" of the amount of rebate payable, found in
subsection (1E) - paragraph (c);
- the gathering of information
for risk assessment purposes, found in subsections (1E) and (1F) - paragraph
(d);
- other tests of eligibility, found in subsections (2) and (4A)
- paragraph (e);
- rules about calculation of the rate of rebates,
found in subsections (5), (5A), (5AA) and (5AB) - paragraph
(f);
- the application of provisions of the Acts Interpretation
Act 1901 in relation to a notice under subsection (5A) declaring a rate of
rebate, found in subsections (5B) - paragraph (g);
- a
special appropriation clause for the purpose of section 164, found in subsection
(6) ) - paragraph (h);
- definitions of important terms used in
section 164, found in subsections (7) to (9) inclusive - paragraph
(i).
Item 5 - Modernisation
This Item amends
subsection 164(1) by omitting a cross-reference to subsection (3), and inserting
a cross-reference to "subsection (4A)" alongside the existing reference to
subsection (2), for the purposes of clarifying the eligibility provisions
prescribed in section 164
By force of this amendment, eligibility for
diesel fuel rebate under the conditions set out in subsection 164(1) is subject
to subsection (2) (using fuel for an ineligible purpose, or selling or losing
fuel), and subsection (4A) (fuel which is the subject of a notice of intention -
see below).
Item 6 - Eligibility
This Item
affects the eligibility for rebate for "mining operations" under the
Act.
This amendment will extend the present exclusion from eligibility in
s164(1)(a) (ie "...a road vehicle on a public road") to exclude rebate for
all vehicles on a public road;
· On 23 September 1996 the AAT
handed down its decision in the case of Dyno Wesfarmers Limited v CEO
Customs.
This case involved consideration of travel undertaken by a
specialised explosives truck on public roads, covering average distances of
150km each way between the explosives depot and mining sites to undertake what
was agreed to be mining operations at those sites. The AAT held that diesel
fuel used in the course of this on-road activity was
rebatable.
· The Tribunal found that such on-road journeys were
"mining for minerals" within paragraph (a) of the definition of "mining
operations" in subsection 164(7) of the Customs Act, as those journeys were "an
integral part of this activity". This was despite an earlier AAT decision that
had found that "mining for minerals" in paragraph (a) carried its ordinary
meaning of the actual extraction of material from the ground. The effect of
such "integral part of" reasoning is to defeat the clear intent of the 1995
amendments to the Customs Act (inserted by Act No. 87 of 1995), which removed
the "connected with" sweeper clauses and replaced them with an objective list of
eligible activities.
Amendments in this Bill will ensure that the
transportation of people, equipment and goods to be used in "mining operations"
is not to be regarded as actually being that eligible
operation.
· This item amends paragraph 164(1)(a) to completely
exclude all public road activity from eligibility
· Item 21 in part
excludes all transportation of people, equipment and goods to and from places
where "mining operations" take place, other than such transport to the extent
that it constitutes the activity in paragraphs (c), (n) or (s);.
Item
7 - Modernisation
This Item repeals subsection 164(1A) and
substitutes subsections (1A) to (1G) inclusive.
These provision sets out
the requirements for the making of an application for diesel fuel
rebate.
New subsection (1A) prescribes the matters which must be
contained in a application for diesel fuel rebate. In accordance with this
provision (which replaces existing subsection 164(4AA), an application
must:
· be made on an approved form - paragraph
(a);
(section 4A of the Customs Act 1901 provides that
approved forms are disallowable instruments for the purposes of section 46A of
the Acts Interpretation Act 1901.)
· include the information
required by the form - paragraph (b);
· be signed - paragraph
(c);
· be given to an officer doing duty in relation to diesel fuel
rebate - paragraph (d);
· be accompanied by such records as are
prescribed in the regulation - paragraph (e).
- In addition,
see subsection (1D) for further matters which an applicant must provide in an
application.
New subsection (1B) provides that the CEO may waive
the requirement in paragraph (1A)(e) to provide prescribed records if the CEO is
satisfied that the applicant is unable to provide the records because of
circumstances beyond the applicant's control. This replaces existing subsection
164(4B), which is in the same form.
New subsection (1C) provides
that an application for rebate must not be made before the duty is paid on the
fuel concerned. This replaces existing subsection 164(1A), which is in the same
form.
New subsection (1D) prescribes other matters which must be
contained in an application for diesel fuel rebate. In accordance with this
provision, an application must include:
· the applicant's own
assessment of the applicant's entitlement - paragraph
(a);
· the applicant's certification that the information
contained in the application is correct - paragraph (b);
· a
statement by the applicant acknowledging the requirement to create and maintain
records - paragraph (c;) (item 36, new subsections 240A (1 to 2C) refer
);
· a statement by the applicant acknowledging the applicant's
obligations in relation to audit powers that may be exercised by an officer
authorised by the CEO - paragraph (d). (item 25, new section 164AC
refers).
New subsection (1E) provides that the CEO may adopt the
applicant's assessment in whole or in part.
This provision sets in place
a main feature of the modernised Diesel Fuel Rebate Scheme, by providing for a
self-assessment approach to the making of claims for diesel fuel rebate.
These self-assessment provisions, taken in conjunction with the
new record-keeping obligations (Item 36, section 240A), the audit
powers Item 25, new section 164AC, and the penalty provisions
(the strict liability penalties Item 25, new section 164A and
subsection 164AC(8), and the administrative penalty provision Item 25,
new section 164AA), will provide the legislative basis for the modernisation
of the Scheme.
New subsection (1F) provides that the CEO may
survey users of the Scheme regarding the business or operations in respect of
which the person usually claims diesel fuel rebate.
New subsection
(1G) provides that the CEO may refuse to action any claim by an applicant
who has failed to comply with a request to complete and return a survey.
· The power to request completion of a survey is essential to the
operation of the self-assessment scheme. The information proposed to be
gathered in relation to the diesel-fuel related activities of claimants will be
used to underpin a risk-management strategy for the Scheme, in accordance with
principles recommended by the Australian National Audit Office in its recent
audit of the Scheme.
· The approach of denying access to the Scheme
to those who fail or refuse to complete the survey is seen as fair since the
applicant can regain access at any time by completing the survey, with no
prejudice occasioned to the eligibility of the fuel "suspended" in the interim
by reason only of that failure or refusal.
· However, since the Act
requires that claims for rebate must be made no later than 3 years after
purchase of the fuel, new subsection 164(4A), (item 9 of Schedule 1
refers), claimants who persist in refusing to complete a survey form when
requested may eventually find that eligibility to claim in respect of some fuel
may cease for that reason.
· an applicant may seek AAT review of the
CEO's decision to refuse to process a claim following the non-return of a survey
Item 41 (new paragraph 273GA(1)(hb))
Item 8 -
Modernisation
This Item substitutes a new subsection 164(2)
which sets out the conditions whereby diesel fuel may become ineligible for
rebate.
· In accordance with section 164, diesel fuel is eligible
for rebate when it is purchased with the intention that it be used for an
eligible purpose. Actual use is not a pre-requisite to applying for the rebate.
However, certain uses or events may render the fuel ineligibile, thus making
rebate repayable.
This new subsection, which replaces existing
subsection 164(2), highlights the special circumstance under this Scheme where
one's entitlement to rebate may exist prior to an actual eligible fuel use, and
then be extinguished by a subsequent disentitling event (like a sale or other
disposal of the fuel, or a loss, or a use in a manner not specified in the
rebate application).
· Failure to substantiate the entitlement to
diesel fuel rebate applied for (eg by reason of insufficient records etc), might
also provide a further reason for an applicant's entitlement to rebate to be
reassessed (for example, following an audit conducted under new section
164AC the CEO may amend an applicant's assessment under new subsection
164AD(4) (item 25 refers).
The new subsection 164(2) provides
that a person is not entitled to be paid diesel fuel rebate, or to retain diesel
fuel rebate, where the person:
- uses the fuel otherwise than in
an eligible manner - paragraph (a);
- sells or otherwise
disposes of the fuel - paragraph (b); or
- loses the
fuel, whether because of accident, theft or any other reason
- paragraph (c).
Item 9 -
Modernisation
This Item repeals the following subsections in section
164, and substitutes new subsections 164(4A) and (4B) as
follows:
· subsection (4AA), dealing with applications under
the current provisions, is repealed as its functions are subsumed by the new
subsection (1A) (item 7 refers);
· subsection (4AB),
dealing with notices of intention is repealed and substituted by new
subsection (4A) - see below;
· subsections (4A) and (4B),
dealing with documents which may be prescribed in the Regulations as being
required to be submitted with an application, and the ability to waive that
requirement, are repealed as their functions are subsumed by new paragraph
(1A)(e) and new subsection (1B) (item 7
refers);
· subsection (4C), dealing with the CEO's ability to
accept, in whole or in part, estimates and particulars contained in an
application, is repealed as its function is subsumed by new subsection
(1E) (item 7 refers);
· subsection (4D), which provides for
written notice to be given to an applicant in relation to the amount payable on
an application, is repealed and substituted by
new subsection (4B), which operates to the same effect in
relation to an assessment made under the new provisions.
New
subsection(4A) replaces existing subsection 164(4AB) dealing with Notices of
Intention. That subsection prescribed the procedure for the lodging of notices
of intention in respect of future applications for diesel fuel rebate. While
there is a restriction to the payment of rebate on fuel purchased more than 3
years after an application for rebate is lodged, this restriction only applies
in respect of fuel purchased after 1 July 1994.
Where fuel was purchased
before that date, and a notice of intention to lodge an application in respect
of that fuel was also lodged before that date, then the current subsection does
not limit the claimant's entitlement to the 3 year maximum time period. In
excess of 2000 notices of intention have been lodged under this provision and to
date a significant number have not been translated into claims under the Scheme.
As these notices of intent represent a potentially significant outstanding
contingent liability on the Commonwealth, the new subsection (4A) will
effectively sunset the life of Notices of Intention, by requiring those notices
to be translated into claims before the commencement of the modernisation
provisions contained in this Bill (ie which under subclause 2(2) is proposed to
be by proclamation, at a time close to 6 months after the Bill receives the
Royal Assent).
Item 10 - Eligibility
This Item
inserts a definition of beneficiation into the Act, for the
purposes of the eligibility for rebate under "mining operations".
Over
the years there has been some litigation conducted concerning the meaning of the
term beneficiation, which has a specific trade meaning in relation
to some minerals, but which has a less than precise meaning in relation to
others. Moreover, in relation to some minerals, the term is not employed at all
by those who mine the mineral. This has led to argument as to what meaning the
word bears in respect of each particular mineral.
So as to provide
certainty, the amendment will introduce an exhaustive statutory meaning of the
word "beneficiation" for all minerals. In particular, the process of
beneficiation (when it takes place), is intended by operation of new subsections
164(7A) and (7B) (item 23 refers) to determine the point at
which the particular mineral is said to be recovered for the purposes of this
Scheme, and therefore to be the final point under the statute at which rebate is
payable. Where no process of beneficiation takes place, new subsections
164(7A) and (7B) provide other rules for determining the final point at which
rebate is payable (item 23 refers).
In accordance with this
provision, "beneficiation" means:
· in relation to minerals
or ores bearing minerals (other than crude oil, natural gas,or common salt)
paragraph (a);
(i) the crushing, screening, grinding or
hydraulic classification of those minerals or of ores bearing those minerals, or
other like processes
- it is intended that this provision cover like
processes which reduce the subject material into smaller particles;
(ii)
a physical process carried out to obtain concentrates from ores bearing those
minerals, that does not involve a chemical change to the minerals in the
ores;
- On 23 September 1996 the AAT handed down its decision in the case
of TEMCO (Tasmanian Metallurgical Company v CEO Customs). In this case the
AAT held that the beneficiation process extended to include a process whereby
the recovered mineral concentrate was transformed into a synthetic
alloy.
- The Government has decided to amend the Act to clarify its
intention that, unless otherwise provided, processes which entail chemical
changes to the mineral in the ores are ineligible for rebate;
(iii) in
relation to gold, copper or uranium ores (but not concentrates derived from
those ores) - an ambient-temperature hydrometallurgical process; or
(iv)
in relation to bauxite - the production of alumina by the Bayer
process.
· in relation to crude oil, any process that separates oil
from the other constituents of crude oil so as to yield the product known as
stock tank oil - paragraph (b).
- The process of
producing stock tank oil was considered by the Administrative Appeals Tribunal
in the case of Re Santos Resources Pty Ltd and Collector of Customs (Q), (1988)
18 ALD 11, and it is the process described in that decision which is intended to
be covered by this provision;
· in relation to natural gas, any
process to prepare the gas to be liquefied (but not including the liquefying
process itself), or otherwise preparing the gas for storage or introduction into
a pipeline (whichever occurs first) but not including the storage or
introduction into the pipeline, as the case may be -
paragraph (c);
· in relation to common salt - the
crushing, screening, grinding or other like processes, or the washing process
or, where there is more than one washing process, the initial washing -
paragraph (d);
- it is intended by this provision that the
beneficiation of salt should be regarded as ended, and the salt fully recovered,
after the initial washing process. No further beneficiation process (such as
crushing, screening, grinding or other process) is to be rebateable after the
salt has been washed;
· paragraph (b) of the definition of
"mining operations" in subsection 164(7) as it stood prior to these amendments
referred to "the dressing or beneficiation of minerals". The above definition
of "beneficiation" subsumes the process of "dressing", and item 13 therefore
removes that word from the
new paragraph 164(7)(b).
Item 11 -
Eligibility
This Item inserts the definition of gross vehicle
weight into the Act, for the purposes of the eligibility for rebate
under "mining operations".
· New paragraph (y) of the definition of
"mining operations" inserted by item 21 renders ineligible for rebate fuel used
in most vehicles less than 3.5 tonnes gross vehicle weight.
Item
12 - Eligibility
This Item amends the definition of "minerals"
in subsection 164(7) by omitting "minerals in any form" and substituting
"naturally occurring minerals formed by geological processes".
· It
is intended by this amendment that a man-made product not be regarded as a
mineral even if something of identical chemical composition can be found in
nature.
Item 13 - Eligibility
This Item repeals and
remakes paragraphs (a) and (b) of the definition of "mining operations" to
effectively move the production of salt by evaporation from existing paragraph
(g) of this definition into these paragraphs.
· On 12 June 1996 the
Federal Court handed down a Full Court decision in the case of DAMPIER SALT
(Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd). The
result of the Full Court' s decision is that the production of common salt needs
no special mention in paragraph (g) to be regarded as "mining for minerals".
This amendment gives effect to that view.
(item 10 refers)
· the Government has taken the
opportunity, in the new definition of beneficiation and in
new subsection 164(7B) (item 23 refers), to restate the point
at which the recovery of common salt ceases for the purpose of eligibility for
diesel fuel rebate - ie the first washing in most cases.
Item
14 - Eligibility
This Item repeals and substitutes a new
paragraph (c) of the definition of "mining operations".
New paragraph (c)
of the definition of "mining operations" provides rebate in respect of the
transport of the recovered minerals/ores to the place of beneficiation. This
amendment:
· excludes from eligibility transport by sea of
minerals or ores to be beneficiated - subparagraph (c)(i);
and
· excludes from eligibility all return journey transport that is
not a direct return journey from the place of beneficiation to the place where
the mining operation is carried on
- subparagraph (c)(ii);
· it is intended that, in
the case of a journey which involves the relaying by stages of different
vehicles transporting the minerals/ore to the place of beneficiation, that all
legs of the outward journey be potentially eligible (ie subject to the exclusion
of sea transport), but that none of the return legs shall be eligible, since
none of these can be direct return journeys between the 2 places concerned
- subparagraph (c)(ii)
· the Government intends
that, in the case of any materials transported to the place of beneficiation for
the purpose of use in the beneficiation process (not being the recovered
minerals or ores which are actually being beneficiated), those materials are
not eligible for rebate.
· Note that all public road
transport is already excluded by paragraph 164(1)(a) (item 6
refers).
Item 15 - Eligibility
This Item repeals
paragraph (g) of the definition of "mining operations", which deals with the
production of common salt by evaporation;
· The production of common
salt by evaporation is now contained in paragraphs (a) and (b) of the definition
of "mining operations" (item 13 refers).
Item 16 -
Eligibility
This Item amends paragraph (h) of the definition of
"mining operations" to provide that rebate is only payable on the reactivation
of carbon for use in the beneficiation of ores bearing gold where the carbon is
reactivated at the place where the gold is mined, or
beneficiated;
· Formerly, this activity was rebateable wherever it
was carried out.
Item 17 - Eligibility
This Item
amends paragraph (l) of the definition of "mining operations" to provide that
rebate is only payable for the searching for ground water, or the construction
or maintenance of facilities for the extraction of such water, where the
searching or construction/maintenance occurs at the place of exploration etc,
the place of initial recovery or the place of the beneficiation operation, and
is carried out by the person who carries on the mining operation or by a person
contracted by that person for that purpose.
· formerly, this
activity was also rebateable if carried out at a place adjacent to the
above places by the persons specified.
Item 18 -
Eligibility
This Item omits paragraph (p) of the definition of
"mining operations" and substitutes new paragraphs (p) and (pa) to provide that
rebate is payable:
(i) in relation to tailings dams
subparagraph (p)(i), or dams or other works to store or contain
water polluted by a mining operation subparagraph (p)(ii) -
where the construction or maintenance occurs at the place of exploration etc,
the place of initial recovery or the place of the beneficiation operation or
at a place adjacent to that place, and is carried out by the person who
carries on the mining operation or by a person contracted by that person for
that purpose.
· This represents no change to the present
situation;
(ii) in relation to dams to store or contain
unpolluted water for a mining operation paragraph (pa) -
where the construction or maintenance occurs at the place of initial
recovery or the place of the beneficiation operation, and is carried out by the
person who carries on the mining operation or by a person contracted by that
person for that purpose.
· Formerly, this activity was also
rebateable if carried out at a place adjacent to the above
places.
Item 19 - Eligibility
This Item omits the
reference to "transport networks" in paragraph (v) of the definition of "mining
operations". Transport networks are dealt with in new paragraph (va)
(item 20 refers).
Item 20 -
Eligibility
This Item inserts new paragraph (va) into the definition
of "mining operations" dealing with the conditions under which rebate is payable
in respect of "transport networks".
The new paragraph (va) provides that
rebate is only payable for the service, maintenance or repair of transport
networks that are employed solely for use in a mining operation referred to in
paragraph (c) where the service, maintenance or repair is carried out on so much
of the network as is located at the place of exploration etc, the place of
initial recovery or the place of the beneficiation operation, and is carried out
by the person who carries on the mining operation referred to in paragraph (c)
or by a person contracted by that person for that
purpose.
· Formerly, the service, maintenance or repair of the
entire transport network was rebateable.
Item 21 -
Eligibility
This Item amends the definition of "mining operations" in
subsection 164(7) for the following purposes:
New paragraph (x) is
inserted to make it clear that quarrying or dredging operations to the extent
that the purpose of those operations is to obtain materials for use in building,
road making, landscaping, construction or similar purposes are not eligible for
rebate;
New paragraph (y) is inserted to exclude from eligibility
the use of any vehicle not exceeding 3.5 tonnes gross vehicle weight,
unless:
the vehicle is a fork-lift, a front-end loader, a tractor, or
other similar vehicle prescribed in the regulations; or
it is a vehicle
which has been extensively modified for use underground, and, if that is the
case, when it is used underground, that use is to be eligible.
New
paragraph (z) excludes from eligibility the transport, by any means, of
people, equipment or goods to or from the place of exploration etc, initial
recovery or the place of the beneficiation operation, other than such transport
to the extent that it constitutes the activity in paragraphs (c), (n) or
(s).
· (Paragraph (c) relates to transport for beneficiation
purposes, paragraph (n) relates to the supply of water and paragraph (s) relates
to the removal of waste products)
· This amendment is intended to
exclude the reasoning of the AAT in the decision of Dyno Wesfarmers
(Dyno Wesfarmers Limited v CEO Customs, 23 September 1996) that the
transportation of things to be used in an eligible mining operation actually is
that eligible mining operation
Item 22 -
Eligibility
This Item amends the definition of "use" in subsection
164(7) to also exclude from the meaning of "use" the loss of diesel fuel
by a person.
· This amendment makes the meaning of "use" consistent
with new subsection 164(2), (item 8 refers) which lists the
matters and events which provides that a person is not entitled to be paid
diesel fuel rebate, or to retain diesel fuel rebate, where the
person:
- uses the fuel otherwise than in an eligible manner -
paragraph (a); or
- sells or otherwise disposes of the fuel -
paragraph (b); or
- loses the fuel, whether because of
accident, theft or any other reason
- paragraph (c)
Item 23 -
Eligibility
This Item inserts new subsections (7A) and (7B) into
section 164, for the purposes of prescribing a point in time where the recovery
of a mineral ceases.
In accordance with this provision, recovery of a
mineral ceases:
(i) when the process of beneficiation ceases -
paragraph (a); or
(ii) in the absence of a beneficiation process -
when the minerals/ores are first stockpiled, or if not stockpiled, removed from
the ore body or deposit- paragraph (b);
By this provision, it is
intended to make clear that, unless otherwise specifically provided,
eligibility for rebate under the head of "mining operations" is to only be
payable for diesel fuel used in operations occurring at the place of initial
recovery of the minerals, being those which are directly involved in removing
the minerals/ores from the crust of the earth.
As a second general
principle, it is intended that the extension of rebate eligibility to those
activities defined as beneficiation, (in particular,
subparagraphs (a)(i) and (a)(ii) of that definition) (item 10
refers) should be read properly in the light of the close physical and
temporal association with the removal and recovery of the minerals/ores from the
crust of the earth, and should not be construed in a manner which extends that
process to activities carried on for economic purposes.
· On 12 June
1996 the Federal Court handed down a Full Court decision in the case of DAMPIER
SALT (Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd).
The Full Court' s decision held that activities undertaken for economic purposes
(ie activities undertaken to render an already saleable product into a product
which was more economically valuable) were rebateable.
· these
amendments (the definition of beneficiation (item 10
refers), the revision of paragraphs (a) and (b) of the definition of "mining
operations" (item 13 refers) and new subsections (7A) and (7B) in this
item evince an intention that such economic factors are to be disregarded for
diesel fuel rebate purposes.
Item 24 -
Eligibility
This Item substitutes a new subsection (9) in
section 164, for the following purposes:
New paragraph (a) permits
rebate to be paid in relation to the particular activities specifically referred
to in the that paragraph when carried out by a subcontractor of a person
contracted to carry out that activity;
· This repeats the current
provision, with the addition of paragraphs (pa) and (va) inserted by items 18
and 20 of this Bill.
New paragraph (b) provides that the
paragraphs occurring after paragraph (b) of the definition of "mining
operations" are to be construed in their own terms, and not by reference to
paragraphs (a) or (b) of that definition;
· Frequent attempts are
made by applicants to expand the range of the specific activities referred to in
the paragraphs occurring after paragraph (b) of the definition of "mining
operations", by attempting to infer a cross-reference to the general heads of
rebate eligibility contained in paragraphs (a) and (b). This amendment is
intended to reinforce the intention that the paragraphs occurring after
paragraph (b) are self-contained compartments of specific eligible activity, to
be construed in their own terms.
Item
25 Modernisation
This Item repeals existing sections 164A and
s164AA, and substitutes new sections as set out below.
· Existing
section 164A deals with notification of sale of diesel fuel, and is substituted
by new section 164A, set out below
· Existing
section 164AA contains the current administrative penalty provisions. These
provisions have proved to be unworkable in practice, given the requirement to
show that rebate was obtained knowingly or recklessly before the
administrative penalty option is available. This effectively defeats the
purpose of an administrative penalty scheme, which should provide a lesser
penalty alternative in situations where there is no dispute concerning the facts
of the overclaimed rebate. The new regime proposes in new section 164AA an
administrative penalty option which follows the 2 new strict liability offences
(new section 164A and new subsection 164AC(8)); importantly, the new structure
of a lesser penalty option is linked to two principal offence provisions where
intention (ie mens rea) is irrelevant (ie the two new offence
provisions are strict liability provisions, unlike the current provision in
section 164AA).
The new sections are as follows:
164A Diesel fuel
rebate - notification of sale
164AA Diesel fuel rebate - penalty in lieu of
prosecution
164AB Voluntary notification of error
164AC Audit of diesel
fuel rebate applications
164AD CEO may amend the assessment of a person's
rebate entitlement
164AE CEO's power to seek information
The recent
report by the Australian National Audit Office on the Diesel Fuel Rebate Scheme
identified several administrative problems and shortcomings under the Scheme.
The amendments contained in the above new sections address these
problems and shortcomings by modernising the Scheme. Specifically, the
amendments:
· introduce record-keeping obligations for applicants
for diesel fuel rebate - section 240A, as amended by Item 36 of
Schedule 1;
· provide audit powers to enable diesel fuel rebate
claims to be audited and verified; - new section 164AC;
and
· provide sanctions for those claimants who fail to comply with
the obligations imposed on claimants, including
- criminal offences with
penalties not exceeding 3 times the amount of rebate obtained or retained by
the commission of the offence, in cases where a person knowingly or recklessly
obtains or retains diesel fuel rebate which is not payable
(new paragraph 234(1)(c) items 32 and 33 refer), or
knowingly or recklessly makes a false or misleading statement
(new subsection 234(4), item 35 refers), in which case the
maximum penalty which is available is a sum not exceeding $5000 and twice the
rebate to which there was no entitlement;
- two strict liability offences
with penalties not exceeding the amount of rebate "overclaimed", where a
person fails to notify Customs of any one of the 3 disentitling events for
rebate (ie - sale or other disposal, use in an otherwise than indicated manner,
or loss), or where a person is unable to substantiate an entitlement to rebate
where the person is required to do so under the new audit powers of diesel fuel
records (new section 164A and new subsection 164AC(8)
);
- an administrative penalty option of 20% of the amount of rebate
overclaimed, applicable to both of the strict liability offences, and which an
applicant may elect to pay and avoid prosecution for those strict liability
offences (new section 164AA).
New Section 164A
Diesel fuel rebate - notification of sale etc.
New section
164A repeats the condition prescribed in new subsection 164(2) (item 8
refers) under which rebate ceases to be payable. It imposes an obligation
on applicants to notify the CEO of any one of the three disentitling events (ie
sale or other disposal, use in and otherwise than indicated manner, or loss)
within 21 days, and provides for a strict liability penalty for failure to
comply, as follows:
Subsection (1) contains the obligation to
notify the CEO if the applicant sells or disposes of the fuel -
paragraph (a); uses the fuel in a manner other than the manner
indicated in the application - paragraph (b); or loses the
fuel (whether by accident, theft or other reason) - paragraph
(c).
· Rebate is payable on the stated intention of the claimant
that the fuel was purchased with an eligible use in contemplation. The above
events operate to disentitle eligibility after the rebate has been paid. The
last disentitling event (loss of the fuel) has been added by this
Bill.
Subsection (1) provides that a person must notify the CEO or
Regional Director within 21 days of becoming aware of the event which renders
the rebate not payable, and provides for a penalty equal to the amount of rebate
applied for and for which there is no entitlement.
Subsection (2)
provides that the above penalty is a strict liability
offence.
· Recovery of the strict liability penalty can
only be achieved in a Court.
New Section 164AA Diesel fuel rebate -
penalty in lieu of prosecution
New section 164AA provides for
an administrative penalty equal to 20% of the amount of the strict
liability penalty in new section 164A.
Matters relating to
the imposition of the administrative penalty appear in
subsections (1), (2) (3).
Subsections (4) to
(9) contain provisions permitting the set-off of amounts owing under
this provision against future entitlements under the Scheme, (up to a maximum of
12 months).
The following are the features of the administrative penalty
system subsections (1), (2) (3):
- the amount of
the administrative penalty is set at 20% of the amount for which a person may be
liable under either of the two new strict liability offences
-subparagraphs (2)(b)(ii) and (2)(c)(ii) refer;
- imposition
of the administrative penalty on such a person is at the discretion of the CEO,
who may issue a notice imposing the administrative penalty -
subsection (1);
- if the person elects to pay the amount
specified in the penalty notice (the notice amount), that person is
thereby immune from prosecution for any offence in relation to the rebate to
which the penalty notice relates - subsection (3)
· the total
amount of the rebate and penalty demanded under subsection (2) is referred
to as "the notice amount" -
subsection (3);
- if the person refuses to pay the
amount specified in the penalty notice (the notice amount), recovery of
the penalty is not enforceable.
· This is a key
feature of the administrative penalty system. Where a person refuses to pay
the administrative penalty, the only sanction then available to the CEO is to
prosecute in a Court for the strict liability offence.
· Under this
system, a person who disputes the facts underpinning the imposition of the
penalty and refuses to pay is guaranteed that, without that person's consent, no
penalty can be exacted other than by order of a Court.
· In this
respect, the administrative penalty operates very much like the "on-the-spot"
traffic offences which govern our roads. As in that case, it is always the
prerogative of the recipient of the administrative penalty notice to dispute the
facts of the matter in Court. Under this proposed system, a recipient of an
administrative penalty notice who refuses to pay need simply do nothing - it is
the CEO who must then decide whether to launch a prosecution for the strict
liability offence. However, where the CEO does so, and the offence is proven,
the penalty which now might be imposed by the Court is up to 5 times the amount
of the administrative penalty which the person chose to
forego.
Subsection (2) provides that a notice issued under this
provision must:
- set out the CEO's amendment of assessment of the
person's entitlement to diesel fuel rebate - paragraph (2)(a);
- in the case of fuel which is sold or otherwise disposed of, or used in
a manner other than that claimed, or lost, specify the diesel fuel whose
sale, other disposal use or loss has not been notified in accordance with
section 164A - paragraph (2)(b)
- in the case of rebate
unsubstantiated under the applicant's record keeping obligations, specify the
amount of rebate that was not substantiated -
paragraph(2)(c);
- demand repayment of any diesel fuel rebate in
respect of that fuel - subparagraph (2)(b)(i) and
(2)(c)(i);
- demand payment of the 20% administrative penalty -
subparagraph (2)(b)(ii) and (2)(c)(ii);
- notify the
person of the facility to seek a "set-off" in relation to anticipated rebate
over the next 12 months - paragraph (2)(d);
- specify the
address at which repayment of the rebate and payment of the administrative
penalty may be made - paragraph (2)(e).
The following are the
features of the set-off facility - subsections (4) to (9)
inclusive:
- where a diesel fuel applicant has received an
administrative penalty notice in accordance with
subsections (1), (2) (3), the applicant may, within 21
days, write to the CEO requesting a set-of of some or all of the applicant's
anticipated diesel fuel rebate entitlement for the next 12 months -
subsection (4);
- the CEO may grant the request if the CEO is
satisfied that diesel fuel rebate is likely to become payable over the next 12
months - subsection (5);
- if the CEO rejects the request for
set-off, the applicant may still pay the amount specified in the penalty notice
(the notice amount) and thereby become immune from prosecution for
any offence in relation to the rebate to which the penalty notice relates -
subsection (6).
- Subsection (7) provides that, where the
CEO accepts the request, and the applicant's anticipated entitlement over the
next 12 months exceeds "the notice amount" - then the set-off
proceeds over that 12 months until "the notice amount" is
extinguished paragraph 7(a)
- Where the CEO accepts the
request, and the applicant's anticipated entitlement over the next 12 months
does not exceed "the notice amount", then the
set-off may only proceed if the applicant pays the balance, (ie "the
notice amount" less the anticipated entitlement), within 21 days -
paragraph (b). Where the applicant does so, the applicant becomes
immune from prosecution for any offence in relation to the rebate to which the
penalty notice relates (subsection (8)), and the set-off will then
proceed over the next 12 months.
- If a set-off proceeds, but "the
notice amount" is not completely extinguished at the end of 12 months,
then so much of "the notice amount" as remains unpaid at the end
of the 12 months becomes a debt due to the Commonwealth and may be recovered in
a court of competent jurisdiction. (subsection (9))
· This
is the only occasion when an amount of administrative penalty may be recovered
as a debt. The rationale for this is that the applicant, having made an
agreement to pay "the notice amount" and having thereby obtained
immunity from prosecution, should be required to honour the terms of that
agreement.
New Section 164AB Voluntary notification of
error
New section 164AB provides that a person may obtain
immunity from prosecution under the Customs Act by coming forward and
voluntarily notifying an error.
Subsection (1) provides that
immunity is only available where:
- the voluntary admission take place in
advance of any notification of audit under new section 164AC
(as to which, see below) - paragraph (a); and
- the CEO amends the
applicant's assessment under new section 164AD to take account of the
error - paragraph (b); and
- the person pays to the
Commonwealth any amount overclaimed -
paragraph (c).
Subsection (2) provides that subsection
(1) does not affect the person's liability under another Act in respect of any
error or errors in the application.
New Section 164AC Audit of
diesel fuel rebate applications
New subsection 164AC(1)
provides that, for the purposes of auditing a particular diesel fuel rebate
application, the CEO may, within 5 years after the making of that application,
give the applicant notice:
- that the applicant is required to substantiate
the entitlement to any rebate applied for under the application - paragraph
(a); and
- that, for the purposes of the audit, an authorised officer
may wish to exercise all or any of the powers conferred by section 164AC -
paragraph (b).
Subsection (2) sets out the powers of an
authorised officer, for the purposes of auditing a claim for diesel fuel rebate.
Under these provisions an authorised officer may:
- require the
applicant to demonstrate the method, or the operation of any record keeping or
accounting system, employed in arriving at the particulars or estimates included
in the application and in the related diesel fuel records -
paragraph (a); and
- conduct testing of the above record
keeping or accounting system in order to determine the accuracy of the system in
arriving at those particulars or estimates
- paragraph (b);
- require the applicant within a period
notified by the authorised officer, to make available for inspection diesel
fuel records that substantiate the applicant's claim -
paragraph (c).
· means of compliance with this provision
is dealt with in subsection (3)
· failure to comply entails a
strict liability offence - see subsections (8) and(9).
- examine, make
and retain copies of, or take and retain extracts from, any records made
available in accordance with a requirement under paragraph (c) above -
paragraph (d);
- examine any premises, whether indicated by
the diesel fuel records or by the applicant, where diesel fuel the subject of
the application has been, or is, used or stored -
paragraph (e).
· The premises which may be examined
under this provision are limited by subsections (4) and (5). In
particular, examination of residential premises is prohibited in
all but a few exceptional cases;
· subsection 164AC(13)
provides that an authorised officer proposing to enter premises must produce
identification on request
- examine any receptacle in which diesel fuel
the subject of the application has been stored, or is stored, and to inspect,
take and retain samples of, any fuel stored in it -
paragraph (f);
- board and examine any vessel, or examine any
vehicle or machine, in the control of the applicant, in which diesel fuel the
subject of the application has been used or is used, and to examine, take and
retain samples of, any fuel in that vessel, vehicle or machine -
paragraph (g);
· examination of a vessel under this
provision is limited by subsection (6). In particular, examination
of the "residential" portion of the vessel (ie the crew's quarters) is
prohibited in all but a few exceptional
cases;
· subsection 164AC(7) makes it clear that this
power includes the power to conduct tests of the vessel, vehicle or machine,
etc;
· subsection 164AC(13) provides that an authorised
officer proposing to enter premises must produce identification on
request
- require the applicant to answer any questions concerning the
diesel fuel the subject of the application -
paragraph (h).
Subsection (3) provides for the means of
compliance with a requirement under paragraph (2)(c) that the
applicant make available for inspection diesel fuel records that substantiate
the applicant's claim. In compliance with such a requirement, the applicant
may:
- send or give the diesel fuel records to the authorised officer -
paragraph (a);
- if the records are maintained at the
residential premises of the applicant - by consenting to their examination, at
any reasonable time, by the authorised officer at those premises -
paragraph (b).
· subsection 164AC(13) provides
that an authorised officer proposing to enter premises must produce
identification on request
- if the records are maintained at premises
that are not residential premises - by notifying the authorised officer that the
records may be examined, at any reasonable time, by the authorised officer at
those premises - paragraph (c).
Subsections (4) and
(5) provide that the power of an authorised officer under
paragraph (2)(e) to examine premises, extends to the power to
examine residential premises only if:
- the application for rebate
is made under paragraph 164(1)(b) (ie for the generation of electricity at
residential premises), and the occupant of the premises consents -
subsection (4); or
- the application for rebate is made under
paragraphs 164(1)(c) or (d) (ie at a hospital or nursing home or other medical
or nursing institution, or at a home for aged persons), and the occupant of the
premises consents - subsection (5).
· subsection
(13) provides that an authorised officer must produce identification on
request.
Subsection (6) provides that the power of an authorised
officer under paragraph (2)(g) to board a vessel, extends to the
power to examine that part of the vessel that comprises the living quarters for
any of the crew of the vessel only if the application for the fuel is made under
paragraph 164(1)(b) (ie for the generation of electricity at residential
premises), and the person in charge of the vessel consents.
Subsection
(7) provides the power of an authorised officer under
paragraph (2)(g) to examine a vessel vehicle or machine includes a
power to conduct, or supervise the conducting of, a test of the vessel, vehicle
or machine in order to determine its rate of diesel fuel
consumption.
Subsection (8) imposes a penalty for refusing or
failing to provide records that substantiate a claim for diesel fuel rebate,
where one has received notice to do so;
· This is the second of the
new strict liability offences, to cover the sanction for a failure to
substantiate an entitlement to rebate via the new audit powers of diesel fuel
records.
· The penalty is an amount not exceeding the amount applied
for and not substantiated.
Subsection (9) provides that this offence
is an offence of strict liability;
Subsection (10) provides that,
in determining whether diesel fuel records substantiate a person's entitlement
to rebate applied for in respect of particular fuel, any particulars gathered by
the authorised officer in the exercise of the audit power under this section are
to be taken into account.
Subsection (11) provide for the gazettal
by the CEO of standard rates of diesel fuel consumption in relation to
specified kinds of vessels, vehicles or machines.Subsection
(12) provides that, where an applicant relies on the
gazetted rates in an application, those rates will be accepted on a
"no-questions-asked" basis; on the other hand, where the applicant claims at
consumption rates higher than the gazetted rates, then the applicant's diesel
fuel records are not to be taken to substantiate a claim unless the higher rate
of consumption is actually established by the applicant
paragraphs (a),(b) and (c).Subsection
(13) provides that in entering premises or boarding a vessel, an authorised
officer must, on request, produce written evidence of the fact that he or she is
an authorised officer. Failure by the authorised officer to comply means the
authorised officer is not authorised to enter the premises or board the
vessel.
Subsection (14) provides that the occupier of premises
entered, or a vessel boarded, in accordance with this provision, must provide
the authorised officer with all reasonable facilities and assistance for the
effective exercise of the officer's powers. This subsection makes it an offence
for the occupier to fail to comply, with a penalty of 10 penalty units, or
$1000;
Subsection (15) provides that a person is not excused, on
self-incrimination grounds, from answering a question or making available a
record when required by an authorised officer under subsection (2); however, a
person's answer or production of records may not be used in evidence against the
person in any proceedings except proceedings under the Customs
Act.
Subsection (16) provides that the CEO is not prevented from
auditing, at a particular time, a number of diesel fuel applications made by the
same person.
New Section 164AD CEO may amend the assessment of a
person's rebate entitlement
New section 164AD provides the means by
which the CEO may amend the assessment of an applicant's rebate
entitlement.Subsection (1) provides that the CEO may, subject to the
conditions set out in subsections (2), (3) and (4), amend an assessment within 5
years after the making of a diesel fuel application.
Subsection
(2) provides that the CEO may amend an assessment where the CEO becomes
aware of a sale, disposal or loss of the fuel which is the subject of the rebate
application.
The subsection envisages that the CEO may become aware of those
circumstances in the following ways:
- (i) the applicant may notify the
sale, disposal or loss in accordance with section164A -
paragraph (a).
· New section 164A imposes an
obligation on applicants to notify the CEO of a sale, disposal or loss within 21
days.
· Where an applicant notifies the sale, disposal or loss
within 21 days, the applicant is protected from prosecution or penalty by
operation of new section 164AB;
· In these circumstances, in
relation to the rebate which is the subject of the notification, the CEO may
simply amend the assessment and seek recovery of the overclaimed rebate;
- (ii) the CEO may otherwise become aware of such a sale, disposal or
loss - paragraph (b).
· In such a case, the CEO may have
trade knowledge or personal information (knowledge from an audit is covered
under subsection (4) ).
· The applicant may have also failed to
notify the CEO of a sale, disposal or loss within 21 days, in accordance with
new section.
· For that reason, the applicant can gain no
protection from prosecution or penalty by operation of new section
164AB.
· In these circumstances, in relation to the rebate which
the CEO has been made aware, the CEO may amend the assessment, and either
proceed against the person under the strict liability provision
(new section 164A) or issue a penalty notice under new section
164AA, seeking recovery of the overclaimed rebate and imposing a penalty of 20%
of that amount.
Subsection (3) provides that the CEO may amend an
assessment where the CEO
becomes aware of errors in a diesel fuel
application.
· Where the applicant has voluntarily disclosed the errors
prior to any notification of audit, the applicant is protected from prosecution
or penalty by operation of
new section 164AB.
Subsection (4) provides that
the CEO may amend an assessment where an audit is conducted under new section
164AC, and the CEO is satisfied, having regard to the results of the audit,
that the assessment should be amended.
· In this case, the audit may
have revealed that the applicant has failed to notify the CEO of a sale,
disposal or loss within 21 days in accordance with new section 164A; or
the audit may have revealed errors in the application.
· For that
reason, the applicant can gain no protection from prosecution or penalty by
operation of new section 164AB.
· In these circumstances, the
CEO may amend the assessment, and either proceed against the person under the
strict liability provision (new subsection 164AC(8))or issue a
penalty notice under new section 164AA, seeking recovery of the overclaimed
rebate and imposing a penalty of 20% of that amount.
Subsection
(5) provides that the CEO may not amend an assessment to the extent that,
following a Court or AAT decision in relation to another person, it becomes
clear that a different amount of rebate was payable in respect of that person's
application.
· This provision permits applications which have been
applied for and paid in good faith prior to the decision concerned, to remain
undisturbed to the extent of the revised perception of eligibility introduced by
that decision.
Subsection (6) provides that, where the CEO amends
an applicant's assessment, but chooses not to issue a penalty notice under new
section 164AA, then the CEO must notify the applicant in writing of the
amendment, and inform the applicant that the decision is reviewable by the
AAT
· Item 41 of Schedule 1 amends section 273GA to introduce new
paragraph 273GA(1)(hc), conferring the Tribunal with jurisdiction in
relation to this decision.
Subsection (7) provides that, where the
CEO amends an applicant's assessment resulting in an amount becoming repayable
by the applicant, that applicant must repay that amount to the
Commonwealth.
- Where a person fails to pay that amount, it becomes a
debt due to the Commonwealth and may be recovered in a court of competent
jurisdiction - paragraph (b). This is subject to subsection (9)
below.
Subsection (8) provides that, where the CEO amends
an applicant's assessment resulting in a further amount of rebate becoming
payable to the applicant, the CEO must pay that amount to the applicant as soon
as practicable.
Subsection (9) provides that, where the CEO amends
an applicant's assessment and proceeds to issue a penalty notice under the new
administrative penalty option in new section 164AA, resulting in an
amount becoming payable by the applicant, then that amount may not be recovered
under subsection (7).
- In these circumstances, where the applicant fails
to pay the amount of penalty, or fails to repay the amount of overclaimed rebate
(and does not make a satisfactory set-off arrangement under that section), then
the CEO may only seek recovery by prosecuting the applicant for a strict
liability offence.
New Section 164AE - CEO's power to seek
information
New section 164AE provides that the CEO may seek
information from the head of a Department or authority of the Commonwealth, or
of a State or Territory, or the head of a local authority or any other person,
in connection with diesel fuel that is the subject of an application for diesel
fuel rebate
· This will provide a sufficient head of power to approach
agencies about the release of information they might possess on particular
diesel fuel purchases, and the like.
Item 26 -
Modernisation
This Item amends subsection 165(3) of the Act by
inserting the phrase "(other than diesel fuel rebate)" after "rebate of
duty".
Section 165 of the Act provides the general power of recovery for
overpaid duty rebate etc.
The effect of this amendment is to remove
diesel fuel rebate from the operation of section 165 of the Act. This section
sets out the circumstances for the recovery of, amongst other things, rebates of
duty that have been paid to a person and the whole or part of the rebate was not
payable to him. Currently, diesel fuel rebate is included in this section.
New subsection 164AD(7) of the Act (item 25 of Schedule 1) inserts new
provisions for the recovery of diesel fuel rebate in the circumstances where a
person was not entitled to the rebate that was paid to the person. Therefore,
diesel fuel rebate no longer needs to be included in the operation of section
165.
Item 27 - Modernisation
This Item amends the Act by
repealing subsection 165(4).
Currently, subsection 165(4) sets out
circumstances under which the CEO shall not demand the repayment of rebate which
was not payable to a person under subsection 165(3), as a result of AAT and
Court decisions, etc.
· This matter is now dealt with in new
subsection 164AD(5) (item 25 refers)
Item 28 - Section
165A
This Item amends section 165A by omitting all references to
"subsection 164(2) or 165(3)" and substituting 164AD(7)".
Currently, both
subsection 164(2) and subsection 165(3) sets out circumstances under which
diesel fuel rebate which has been paid to a person must be repaid by the person.
Under subsection 164(2), it is repayable where a person purchases diesel fuel
for a eligible use and has been paid rebate and then uses the fuel in a
non-eligible use. Under subsection 165(3), it is repayable where rebate has
been paid rebate and it was not actually payable to him. Section 165A sets out
the specific circumstances where the amounts that are liable to be repaid under
subsection 164(2) or 165(3) can be set-off against amounts of diesel fuel rebate
that the Commonwealth at the same time is liable to pay to a person. This
set-off provision is separate from the proposed new set-off provision in new
section 164AA, which relates to set-offs of combined penalty and rebate
amounts.
As previously referred to, new provisions for the repayment of
diesel fuel rebate by a person are being inserted by new subsection 164AD(7) and
removed from subsections 164(2) and 165(3). This item, therefore, amends
section 165A to refer to the new provision under which a person is liable to
repay diesel fuel rebate to ensure that the set-off provisions in section 165A
continue to apply in their limited circumstances only.
Item 29 -
Modernisation
This Item contains a mechanical provisions to move
current section 165A to immediately before section 164B and to renumber it as
section 164AF. The purpose of this move is to locate this provision dealing
with diesel fuel rebate scheme set-offs with all other provisions relating to
the Diesel Fuel Rebate Scheme.
Item 30 - Modernisation
This
Item amends the Act by repealing section 214A.
Section 214A presently
sets out the powers of authorised officers for the purposes of the Diesel Fuel
Rebate Scheme, including the circumstances under which they may enter premises
and inspect stocks of diesel fuel and any accounts, books, documents or other
records that relate to the purchase, sale or use of diesel fuel.
New
provisions governing the powers of the authorised officers for the Diesel Fuel
Rebate Scheme are being inserted by new section 164AC of the Act (item 25
Schedule 1 refers) and, as a consequence, section 214A is to be
repealed.
Item 31 - Modernisation
This Item amends
paragraph 234(1)(b) by inserting the phrase "(other than diesel fuel rebate)"
after "rebate".
Section 234 sets out the Customs offences and their
penalties. Currently, paragraph 234(1)(b) provides that a person shall not
obtain any drawback, refund, rebate or remission which is not payable.
Presently, the reference to "rebate" includes diesel fuel rebate.
Item
32 (below) inserts new paragraph 234(1)(c) which contains an offence relating to
diesel fuel rebate only. Therefore, the purpose of this Item is to amend
paragraph 234(1)(b) to remove diesel fuel rebate from its coverage.
Item 32 - Modernisation
This Item amends the Act by
inserting new paragraph 234(1)(c) into subsection 234(1).
New
paragraph 234(1)(c) inserts a new Customs offence and provides that a person
shall not knowingly or recklessly obtain or retain diesel fuel rebate to which
the person is not entitled under section 164.
Item 33
-Modernisation
This item amends the Act by inserting new paragraph
(ba) into subsection 234(2).
Subsection 234(2) sets out the penalties
which apply upon conviction for the contravention of the Customs offences in
subsection 234(1). New paragraph 234(2)(ba) sets out the penalty which applies
in the case of an offence against new paragraph 234(1)(c), ie where a
person knowingly or recklessly obtains or retains diesel fuel rebate to which
the person is not entitled under section 164. In this case, the penalty is one
not exceeding 3 times the amount of diesel fuel rebate that was obtained or
retained by the commission of the offence.
This maximum penalty level is
to be compared to the maximum penalty of an amount not exceeding 100% of the
"overclaim" prescribed for the two new strict liability offences, and the 20%
level for the administrative penalty.
Item 34 -
Modernisation
This Item amends paragraphs 234(2)(c) by inserting a
reference to subsection 234(4). New subsection 234(4) is to be inserted
by Item 35 below.
Item 35 - Modernisation
This Item inserts
new subsection 234(4) into section 234.
New subsection 234(4)
inserts a new penalty provision in respect of convictions for the contravention
of paragraph 234(1)(d) in respect of an amount of diesel fuel rebate applied
for by a person under section 164. Paragraph 234(1)(d) provides that a person
must not knowingly or recklessly make a statement to an officer that is false or
misleading in a material particular or omit from a statement made to an officer
any matter or thing without which the statement is misleading in a material
particular. This penalty will apply in respect of such statements or omissions
made in respect of any amount of diesel fuel rebate, for example in an
application for diesel fuel rebate made under subsection 164(1A).
New
subsection 234(4) provides that if a person is convicted of such an offence, a
court may, in relation to the offence impose a penalty not exceeding the sum of
$5,000 and twice the amount by which the rebate applied for exceeds the rebate
to which the person would have been entitled had the person not made the false
or misleading statement, or the omission, to which the offence
relates.
Item 36 - Modernisation
This Item amends section
240A by repealing subsections 240A(1) and (2) and substituting them with new
subsection 240A(1), (2), (2A), (2B) and (2C).
Currently, section 240A
contain the provisions governing the retention of all relevant rebate documents
by a person who applies for diesel fuel rebate under section 164. As part of
the modernisation process, the document retention provisions are being
expanded.
New subsection 240A(1) provides that a person (to be
known as the applicant) who makes a diesel fuel rebate application
in respect of particular diesel fuel (to be known as the application
fuel) must maintain, or create and maintain, diesel fuel records in
relation to:
(a) the application fuel; and
(b) any fuel that has been
or is stored with the application fuel;
until the end of the retention
period in relation to those records worked out under new subsection
240A(2A).
This requirement is more comprehensive than the present
requirements under subsection 240A(1), which only require the applicant to
maintain relevant documents that came into the applicant's possession. The new
requirements require the applicant to create and maintain the diesel fuel
records. Also the current requirements only apply in respect of the diesel fuel
to which the application relates whereas the new provisions also apply to any
fuel that has been or is stored with the application fuel.
New
subsection 240A(2) then specifies those records which are diesel fuel
records in relation to both the application fuel and the fuel that has been or
is stored with that particular application fuel. This provisions, however, is
not to limit the generality of the phrase "diesel fuel records" in subsection
240A(1).
Under subsection 240A(2), the diesel fuel records are records
of:
(a) particulars of the purchase of the fuel;
(b) particulars of
the place at which, and of the facility in which, the fuel is or was stored if
the fuel is stored by the person who purchased it pending its use;
(c) if the
fuel has been used:
· the place at which, or the vessel, vehicle or
machine in which, the fuel was so used; and
· when the fuel was
used; and
· the actual nature of the use, including the log books or
other operating records of the vessel, vehicle or machine involved;
and
(d) the particulars of the sale or other disposal if the fuel has been
sold or otherwise disposed of by the person who purchased it;
and
(e) particulars of the loss if the fuel has been lost for a reason that
is known to the person who purchased it; and
(f) if the application fuel
constitutes a portion of the fuel purchased, the particulars of the basis on
which the apportionment is made; and
(g) such other records as the
regulations prescribe.
New subsection 240A(2A) then sets out the
retention periods for diesel fuel records for the purposes of this section.
In relation to application fuel, the retention period for diesel fuel
records is 5 years from the making of the application in respect of that
fuel.
· 5 years is currently prescribed in existing subsection
240A(1);
In relation to fuel that is not application fuel but that
has been or is stored with application fuel, the retention period is 5 years
from the making of the application in respect of that application
fuel.
New subsection 240A(2B) applies to the situation where
diesel fuel purchased for a purpose for which rebate is payable is stored with
other diesel fuel purchased for such a purpose so that particular fuel loses it
identity. Under these circumstances, to the extent that the fuel is no longer
stored, it is presumed to have been drawn off in the order of its
purchase.
· The purpose of this subsection is to enable an
applicant, or an authorised officer conducting an audit, to be certain as to
when the record-keeping obligations in relation to any particular purchase of
fuel have been acquitted, for the purpose of substantiating a claim for diesel
fuel rebate.
New subsection 240A(2C) applies to the situation
where diesel fuel purchased for a purpose for which rebate is payable
(rebateable fuel) is stored with other diesel fuel purchased for
any other purpose (non-rebateabe fuel) so that both types of fuel
lose their particular identity. Similar to subsection 240A(2B), rebateable
fuel, to the extent that it is no longer stored, is presumed to have been drawn
off in the order of it's purchase and non-rebateble fuel, to the extent that it
is no longer stored, is presumed to have been drawn off in the order of its
purchase.
· The purpose of this subsection is to enable an
applicant, or an authorised officer conducting an audit, to be certain as to
when the record-keeping obligations in relation to any particular purchase of
fuel have been acquitted, for the purpose of substantiating a claim for diesel
fuel rebate.
Item 37 - Modernisation
This Item
amends subsection 240A(3) by omitting all references to "document" and
substituting "record".
· diesel fuel records is
defined by Item 3 as records, including records in documentary form. The phrase
"records" countenances both documentary and computer records.
Subsection
240A(3) provides that, in specified circumstances, the requirements of the
section are taken to have been complied with if a true copy of a document is
kept instead of the document itself. This amendment substitutes all references
to "document" in subsection (3) with "record" to ensure that this provision
continues to apply to the new diesel fuel records which will be required to be
kept in accordance with subsection 240A(1) and (2).
Item 38 -
Modernisation
This Item repeals current subsections 240A(4)
and (5) and substitutes a new subsection 240A(4). This new subsection
reiterates the current provisions of subsection 240A(4) and (5) but removes the
requirement for an applicant to certify a copy of a diesel fuel record.
Item 39 - Modernisation
This item amends section
240A by omitting subsections (6) and (7).
Subsection 240A(6) currently
imposes obligations upon an applicant who is required to keep documents that
come into the applicant's possession. These obligations have been subsumed by
new subsections 240A(1) and 240A(2).
Item 40 -
Modernisation
This item amends subsection 240A(8) by omitting
all references to "document" and substituting "record".
Subsection
240A(8) currently specifies the circumstances in which section 240A does not
require the keeping of any documents. This amendment substitutes all references
to "document" in subsection (8) with "record" to ensure that this provision
continues to apply in respect of the new diesel fuel records (including records
in documentary form) which will be required to be kept in accordance with
subsections 240A(1) and (2).
Item 41 -
Modernisation
This item amends subsection 273GA(1) by
repealing paragraphs (haa) and (hb) and substituting new paragraphs (hb) and
(hc).
Subsection 273GA(1) sets out those decisions under the Act which
can be subject to review by the Administrative Appeals Tribunal(AAT).
Currently, paragraph (haa) specifies a decision of a Collector under subsection
164(2) demanding repayment of rebate. The current provisions of subsection
164(2) demanding repayment are being repealed and incorporated into new section
164AD. Therefore this paragraph is also to be repealed as no such decision will
exist in subsection 164(2).
New paragraph (hb) refers to a
decision of the CEO under subsection 164(1G) that the CEO is satisfied of the
matter referred to in that subsection. Under subsection 164(1G), the CEO may be
satisfied that a person who is required to provide information under subsection
164(1F) (the new survey information power - item 7 refers )
fails to comply with that requirement. This decision will be subject to review
by the AAT.
New paragraph (hc) refers to a decision of the CEO
under section 164AD to amend the assessment of a person's rebate entitlement.
This decision will be subject to review by the AAT.
However, this
decision will not be subject to review by the AAT if such a decision is made in
conjunction with the issuing by the CEO of a notice under section 164AA (the
administrative penalty option) in respect of that rebate entitlement. This is
because, if the person refuses to pay the administrative penalty,
recovery of the penalty is not enforceable
· this is a key
feature of the administrative penalty system; ie where a person refuses to
pay the administrative penalty, the provisions are designed such that the only
sanction then available to the CEO is to prosecute in a Court for one of the two
new strict liability offences;
· under this system, a person who
disputes the facts underpinning the imposition of the penalty and refuses to pay
is guaranteed that, without that person's consent, no penalty can be exacted
other than by order of a Court;
· in these circumstances, AAT review
would only "second-guess" the ultimate decision of the Court, and is not
appropriate.
Item 42 - Eligibility
This item
provides the amendments of the Act in items 6, 10 to 21, 23 and 24 of Schedule 1
apply only in relation to diesel fuel:
(a) that is purchased before, on
or after the day on which those items commence; and
(b) that is not
diesel fuel in respect of which an application for diesel rebate is made under
section before, on, or within 3 months after, that day.
These items
contain the amendments to the provisions relating the eligibility for diesel
fuel rebate and, as previously referred to, it is expected that these items will
be proclaimed to commence as soon as practicable after this Act receives the
Royal Assent.
The effect of this application clause is that, once these items commence, there will be a three month sunset period within which applications for diesel fuel rebate can be made which will be governed by the eligibility provisions in force before the amendments commence. Applications lodged before, or on, that day, will continue to be governed by the eligibility provisions in force before the amendments commence. However, any applications for rebate which are made after that three month period will be governed by the amended eligibility provisions regardless of the date of purchase of the diesel fuel, which could be before the date the amendments commenced.
Item 43
-Modernisation
This item provides that the amendments of the
Act in the items of Schedule 1, other than items 6, 10 to 21, 23 and 24, apply
only in relation to diesel fuel in respect of which an application for diesel
fuel rebate is made under section 164 of that Act on or after the day on which
those first-mentioned items commence (whether the fuel was purchased before or
after that day).
These first-mentioned items contain the provisions
relating to the modernisation of the Diesel Fuel Rebate Scheme and, as
previously referred to, it is expected the these items will be proclaimed to
commence on a date to be fixed six months after the Act receives the Royal
Assent.
The effect of this application clause is that, once this Act receives the Royal Assent, there will be a six month period within which applications for diesel fuel rebate can be made which will not be governed by the new modernisation provisions. However, any applications for rebate which are made after the modernisation items commence will be governed by these new provisions regardless of the date of purchase of the diesel fuel, which could be before the date the amendments commenced.
Schedule 2 - Amendment of the Excise Act
1901
Items 1, 2 and 3
Definitions
These Items
insert new definitions into subsection 4(1) of the Act for the purposes of the
Diesel Fuel Rebate Scheme.
diesel fuel rebate is defined as
rebate payable respect of diesel fuel under section 78A ;
diesel
fuel rebate application is defined as an application for diesel fuel
rebate made under section 78A;
diesel fuel records is
defined as records, including records in documentary form, that are required to
be maintained, or created and maintained under section 128A, for the purposes of
the new audit provisions (new section 78AD, item 10 of Schedule 2
refers).
Item 4 - Modernisation
This Item inserts
new subsection 78A(1AA) into section 78A. This subsection is a "table of
contents" provision for section 78A, inserted by the draftsman to assist readers
to interpret this lengthy provision, as part of the "plain English" drafting
policy.
The "table of contents" provided by new subsection (1A) is as
follows;
- particular uses of diesel fuel that provide an entitlement to
rebate, found in subsection (1) - paragraph (a)
- matters
relating to the making of applications for diesel fuel rebate - found in
subsections (1A) to (1D) inclusive, (3) and (4) - paragraph
(b)
- the adoption by the Chief Executive Officer (CEO) of the
applicant's "self assessment" of the amount of rebate payable, found in
subsection (1E) - paragraph (c);
- the gathering of information
for risk assessment purposes, found in subsections (1E) and (1F) - paragraph
(d);
- other tests of eligibility, found in subsections (2) and (4A)
- paragraph (e);
- rules about calculation of the rate of rebates,
found in subsections (5), (5A), (5AA) and (5AB) - paragraph
(f);
- the application of provisions of the Acts Interpretation
Act 1901 in relation to a notice under subsection (5A) declaring a rate of
rebate, found in subsections (5B) - paragraph (g);
- a
special appropriation clause for the purpose of section 78A, found in subsection
(6) ) - paragraph (h);
- definitions of important terms used in
section 78A, found in subsections (7) to (9) inclusive - paragraph
(i).
Item 5 - Modernisation
This Item amends
subsection 78A (1) by omitting a cross-reference to subsection (3), and
inserting a cross-reference to "subsection (4A)" alongside the existing
reference to subsection (2), for the purposes of clarifying the eligibility
provisions prescribed in section 78A
By force of this amendment,
eligibility for diesel fuel rebate under the conditions set out in subsection
78A(1) is subject to subsection (2) (using fuel for an ineligible purpose, or
selling or losing fuel), and subsection (4A) (fuel which is the subject of a
notice of intention - see below).
Item 6 -
Eligibility
This Item affects the eligibility for rebate for "mining
operations" under the Act.
This amendment will extend the present
exclusion from eligibility in s78A(1)(a) (ie "...a road vehicle on a public
road") to exclude rebate for all vehicles on a public
road;
· On 23 September 1996 the AAT handed down its decision in the
case of Dyno Wesfarmers Limited v CEO Customs.
This case involved
consideration of travel undertaken by a specialised explosives truck on public
roads, covering average distances of 150km each way between the explosives
depot and mining sites to undertake what was agreed to be mining operations at
those sites. The AAT held that diesel fuel used in the course of this on-road
activity was rebatable.
· The Tribunal found that such on-road
journeys were "mining for minerals" within paragraph (a) of the definition of
"mining operations" in subsection 164(7) of the Customs Act, as those journeys
were "an integral part of this activity". This was despite an earlier AAT
decision that had found that "mining for minerals" in paragraph (a) carried its
ordinary meaning of the actual extraction of material from the ground. The
effect of such "integral part of" reasoning is to defeat the clear intent of the
1995 amendments to the Customs Act (inserted by Act No. 87 of 1995), which
removed the "connected with" sweeper clauses and replaced them with an objective
list of eligible activities.
Amendments in this Bill will ensure that the
transportation of people, equipment and goods to be used in "mining operations"
is not to be regarded as actually being that eligible
operation.
· This item amends paragraph 78A(1)(a) to completely
exclude all public road activity from eligibility
· Item 21 of
Schedule 1 (amending the Customs Act 1901) in part excludes all
transportation of people, equipment and goods to and from places where "mining
operations" (as defined in that Act) take place, other than such transport to
the extent that it constitutes the activity in paragraphs (c), (n) or (s) of
that definition;.
· by operation of section 78A(7) of the Act,
"mining operations" in the Excise Act 1901 bears
the same meaning as in the Customs Act 1901
Item 7 -
Modernisation
This Item repeals subsection 78A(1A) and substitutes
subsections (1A) to (1G) inclusive.
These provision sets out the
requirements for the making of an application for diesel fuel
rebate.
New subsection (1A) prescribes the matters which must be
contained in a application for diesel fuel rebate. In accordance with this
provision (which replaces existing subsection 78A(4AA), an application
must:
· be made on an approved form - paragraph
(a);
(section 4AA of the Excise Act 1901 provides that
approved forms are disallowable instruments for the purposes of section 46A of
the Acts Interpretation Act 1901.)
· include the information
required by the form - paragraph (b);
· be signed - paragraph
(c);
· be given to an officer doing duty in relation to diesel fuel
rebate - paragraph (d);
· be accompanied by such records as are
prescribed in the regulation - paragraph (e).
- In addition,
see subsection (1D) for further matters which an applicant must provide in an
application.
New subsection (1B) provides that the CEO may waive
the requirement in paragraph (1A)(e) to provide prescribed records if the CEO is
satisfied that the applicant is unable to provide the records because of
circumstances beyond the applicant's control. This replaces existing subsection
78A(4B), which is in the same form.
New subsection (1C) provides
that an application for rebate must not be made before the duty is paid on the
fuel concerned. This replaces existing subsection 78A(1A), which is in the same
form.
New subsection (1D) prescribes other matters which must be
contained in a application for diesel fuel rebate. In accordance with this
provision, an application must include:
· the applicant's own
assessment of the applicant's entitlement - paragraph
(a);
· the applicant's certification that the information
contained in the application is correct - paragraph (b);
· a
statement by the applicant acknowledging the requirement to create and maintain
records - paragraph (c;) (item 21, new subsections 128A (1 to 2C) refer
)
· a statement by the applicant acknowledging the applicant's
obligations in relation to audit powers that may be exercised by an officer
authorised by the CEO - paragraph (d). (item 10, new section 78AD
refers)
New subsection (1E) provides that the CEO may adopt the
applicant's assessment in whole or in part.
This provision sets in place
a main feature of the modernised Diesel Fuel Rebate Scheme, by providing for a
self-assessment approach to the making of claims for diesel fuel rebate.
These self-assessment provisions, taken in conjunction with the
new record-keeping obligations (Item 21, section 128A), the audit
powers (Item 10, new section 78AD), and the penalty provisions
(the strict liability penalties Item 10, new section 78AA and
subsection 78AD(8), and the administrative penalty provision Item 10,
new section 78AB), will provide the legislative basis for the modernisation
of the Scheme
New subsection (1F) provides that the CEO may survey
users of the Scheme regarding the business or operations in respect of which the
person usually claims diesel fuel rebate.
New subsection (1G)
provides that the CEO may refuse to action any claim by an applicant who has
failed to comply with a request to complete and return a survey.
· The power to request completion of a survey is essential to the
operation of the self-assessment scheme. The information proposed to be
gathered in relation to the diesel-fuel related activities of claimants will be
used to underpin a risk-management strategy for the Scheme, in accordance with
principles recommended by the Australian National Audit Office in its recent
audit of the Scheme.
· The approach of denying access to the Scheme
to those who fail or refuse to complete the survey is seen as fair since the
applicant can regain access at any time by completing the survey, with no
prejudice occasioned to the eligibility of the fuel "suspended" in the interim
by reason only of that failure or refusal.
· However, since the Act
requires that claims for rebate must be made no later than 3 years after
purchase of the fuel, (new subsection 78A(4A)) (item 9 of Schedule 2
refers), claimants who persist in refusing to complete a survey form when
requested may eventually find that eligibility to claim in respect of some fuel
may cease for that reason.
· an applicant may seek AAT review of the
CEO's decision to refuse to process a claim following the non-return of a survey
(Item 26, new paragraph 162C(1)(faa))
Item 8 -
Modernisation
This Item substitutes a new subsection 78A(2)
which sets out the conditions whereby diesel fuel may become ineligible for
rebate.
· In accordance with section 78A, diesel fuel is
eligible for rebate when it is purchased with the intention that it be used for
an eligible purpose. Actual use is not a pre-requisite to applying for the
rebate. However, certain uses or events may render the fuel ineligibile, thus
making rebate repayable.
This new subsection, which replaces existing
subsection 78A(2), highlights the special circumstance under this Scheme where
one's entitlement to rebate may exist prior to an actual eligible fuel use, and
then be extinguished by a subsequent disentitling event (like a sale or other
disposal of the fuel, or a loss, or a use in a manner not specified in the
rebate application).
· Failure to substantiate the entitlement to
diesel fuel rebate applied for (eg by reason of insufficient records etc), might
also provide a further reason for an applicant's entitlement to rebate to be
reassessed (for example, following an audit conducted under new section
78AD the CEO may amend an applicant's assessment under
new subsection 78AE(4) (item 10 refers).
The new
subsection 78A(2) provides that a person is not entitled to be paid diesel
fuel rebate, or to retain diesel fuel rebate, where the
person:
· uses the fuel otherwise than in an eligible manner
- paragraph (a);
· sells or otherwise disposes of
the fuel - paragraph (b); or
· loses the fuel, whether
because of accident, theft or any other reason
- paragraph (c).
Item 9 -
Modernisation
This Item repeals the following subsections in section
78A, and substitutes new subsections 78A(4A) and (4B) as
follows:
· subsection (4AA), dealing with applications under
the current provisions, is repealed as its functions are subsumed by the new
subsection (1A) (item 7 refers);
· subsection (4AB),
dealing with notices of intention is repealed and substituted by new
subsection (4A) - see below;
· subsections (4A) and (4B),
dealing with documents which may be prescribed in the Regulations as being
required to be submitted with an application, and the ability to waive that
requirement, are repealed as their functions are subsumed by new paragraph
(1A)(e) and new subsection (1B) (item 7
refers);
· subsection (4C), dealing with the CEO's ability to
accept, in whole or in part, estimates and particulars contained in an
application, is repealed as its function is subsumed by new subsection
(1E);
· subsection (4D), which provides for written notice to be
given to an applicant in relation to the amount payable on an application, is
repealed and substituted by new subsection (4B), which operates
to the same effect in relation to an assessment made under the new
provisions.
New subsection(4A) replaces existing subsection
78A(4AB) dealing with Notices of Intention. That subsection prescribed the
procedure for the lodging of notices of intention in respect of future
applications for diesel fuel rebate. While there is a restriction to the
payment of rebate on fuel purchased more than 3 years after an application for
rebate is lodged, this restriction only applies in respect of fuel purchased
after 1 July 1994.
Where fuel was purchased before that date, and a
notice of intention to lodge an application in respect of that fuel was also
lodged before that date, then the current subsection does not limit the
claimant's entitlement to the 3 year maximum time period. In excess of 2000
notices of intention have been lodged under this provision and to date a
significant number have not been translated into claims under the Scheme. As
these notices of intent represent a potentially significant outstanding
contingent liability on the Commonwealth, the new subsection (4A) will
effectively sunset the life of Notices of Intention, by requiring those notices
to be translated into claims before the commencement of the modernisation
provisions contained in this Bill (ie which under subclause 2(2) is proposed to
be by proclamation, at a time close to 6 months after the Bill receives the
Royal Assent).
Item 10 Modernisation
This Item
repeals existing sections 78AA and s78AB, and substitutes new sections as set
out below.
· Existing section 78AA deals with notification of sale
of diesel fuel, and is substituted by new section 78AA, set out
below
· Existing section 78AB contains the current administrative
penalty provisions. These provisions have proved to be unworkable in practice,
given the requirement to show that rebate was obtained knowingly or
recklessly before the administrative penalty option is available.
This effectively defeats the purpose of an administrative penalty scheme,
which should provide a lesser penalty alternative in situations where there is
no dispute concerning the facts of the overclaimed rebate. The new regime
proposes in new section 78AB an administrative penalty option which follows the
2 new strict liability offences (new section 78AA and new subsection 78AD(8));
importantly, the new structure of a lesser penalty option is linked to two
principal offence provisions where intention (ie mens rea) is
irrelevant (ie the two new offence provisions are strict liability provisions,
unlike the current provision in section 78AB).
The new sections are as
follows:
76AA Diesel fuel rebate - notification of sale
78AB Diesel
fuel rebate - penalty in lieu of prosecution
78AC Voluntary notification of
error
78AD Audit of diesel fuel rebate applications
78AE CEO may amend the
assessment of a person's rebate entitlement
78AF CEO's power to seek
information
The recent report by the Australian National Audit Office on
the Diesel Fuel Rebate Scheme identified several administrative problems and
shortcomings under the Scheme.
The amendments contained in the above new
sections address these problems and shortcomings by modernising the Scheme.
Specifically, the amendments:
· introduce record-keeping obligations
for applicants for diesel fuel rebate - section 128A, as
amended by item 21 of Schedule 2;
· provide audit powers to
enable diesel fuel rebate claims to be audited and verified; - new section
78AD; and
· provide sanctions for those claimants who fail to
comply with the obligations imposed on claimants, including
- criminal
offences with penalties not exceeding 3 times the amount of rebate obtained or
retained by the commission of the offence, in cases where a person knowingly or
recklessly obtains or retains diesel fuel rebate which is not payable
(new paragraph 120(1)(vc) items 17 and 18 refer), or
knowingly or recklessly makes a false or misleading statement
(new subsection 120(4), item 20 refers), in which case the
maximum penalty which is available is a sum not exceeding $5000 and twice the
rebate to which there was no entitlement;
- two strict liability offences
with penalties not exceeding the amount of rebate "overclaimed", where a
person fails to notify Customs of any one of the 3 disentitling events for
rebate (ie - sale or other disposal, use in an otherwise than indicated manner,
or loss), or where a person is unable to substantiate an entitlement to rebate
where the person is required to do so under the new audit powers of diesel fuel
records (new section 78AA and new subsection 78AD(8)
);
- an administrative penalty option of 20% of the amount of rebate
overclaimed, applicable to both of the strict liability offences, and which an
applicant may elect to pay and avoid prosecution for those strict liability
offences (new section 78AB).
New Section 78AA
Diesel fuel rebate - notification of sale etc.
New section
78AA repeats the condition prescribed in new subsection 78A(2) (item 8
refers) under which rebate ceases to be payable. It imposes an obligation
on applicants to notify the CEO of any one of the three disentitling events (ie
sale or other disposal, use in and otherwise than indicated manner, or loss)
within 21 days, and provides for a strict liability penalty for failure to
comply, as follows:
Subsection (1) contains the obligation to
notify the CEO if the applicant sells or disposes of the fuel -
paragraph (a); uses the fuel in a manner other than the manner
indicated in the application - paragraph (b); or loses the
fuel (whether by accident, theft or other reason) - paragraph
(c).
· Rebate is payable on the stated intention of the claimant
that the fuel was purchased with an eligible use in contemplation. The above
events operate to disentitle eligibility after the rebate has been paid. The
last disentitling event (loss of the fuel) has been added by this
Bill.
Subsection (1) provides that a person must notify the CEO or
Regional Director within 21 days of becoming aware of the event which renders
the rebate not payable, and provides for a penalty equal to the amount of rebate
applied for and for which there is no entitlement.
Subsection (2)
provides that the above penalty is a strict liability
offence.
· Recovery of the strict liability penalty can
only be achieved in a Court.
New Section 78AB Diesel fuel rebate -
penalty in lieu of prosecution
New section 78AB provides for
an administrative penalty equal to 20% of the amount of the strict
liability penalty in new section 78AA.
Matters relating to
the imposition of the administrative penalty appear in
subsections (1), (2) (3).
Subsections (4) to
(9) contain provisions permitting the set-off of amounts owing under
this provision against future entitlements under the Scheme, (up to a maximum of
12 months).
The following are the features of the administrative penalty
system subsections (1), (2) (3):
- the amount of
the administrative penalty is set at 20% of the amount for which a person may be
liable as a strict liability penalty - subparagraphs (2)(b)(ii) and
(2)(c)(ii) refer;
- imposition of the administrative penalty on such
a person is at the discretion of the CEO, who may issue a notice imposing the
administrative penalty - subsection (1);
- if the person
elects to pay the amount specified in the penalty notice (the notice
amount), that person is thereby immune from prosecution for any offence in
relation to the rebate to which the penalty notice relates - subsection
(3)
· the total amount of the rebate and penalty demanded under
subsection (2) is referred to as "the notice amount" -
subsection (3);
- if the person refuses to pay the
amount specified in the penalty notice (the notice amount), recovery of
the penalty is not enforceable.
· This is a key
feature of the administrative penalty system. Where a person refuses to pay
the administrative penalty, the only sanction then available to the CEO is to
prosecute in a Court for the strict liability offence.
· Under this
system, a person who disputes the facts underpinning the imposition of the
penalty and refuses to pay is guaranteed that, without that person's consent, no
penalty can be exacted other than by order of a Court.
· In this
respect, the administrative penalty operates very much like the "on-the-spot"
traffic offences which govern our roads. As in that case, it is always the
prerogative of the recipient of the administrative penalty notice to dispute the
facts of the matter in Court. Under this proposed system, a recipient of an
administrative penalty notice who refuses to pay need simply do nothing - it is
the CEO who must then decide whether to launch a prosecution for the strict
liability offence. However, where the CEO does so, and the offence is proven,
the penalty which now might be imposed by the Court is up to 5 times the amount
of the administrative penalty which the person chose to
forego.
Subsection (2) provides that a notice issued under this
provision must:
- set out the CEO's amendment of assessment of the
person's entitlement to diesel fuel rebate - paragraph (2)(a);
- in the case of fuel which is sold or otherwise disposed of, or used in
a manner other than that claimed, or lost, specify the diesel fuel whose
sale, other disposal use or loss has not been notified in accordance with
section 164A - paragraph (2)(b)
- in the case of rebate
unsubstantiated under the applicant's record keeping obligations, specify the
amount of rebate that was not substantiated -
paragraph(2)(c);
- demand repayment of any diesel fuel rebate in
respect of that fuel - subparagraph (2)(b)(i) and
(2)(c)(i);
- demand payment of the 20% administrative penalty -
subparagraph (2)(b)(ii) and (2)(c)(ii);
- notify the
person of the facility to seek a "set-off" in relation to anticipated rebate
over the next 12 months - paragraph (2)(d);
- specify the
address at which repayment of the rebate and payment of the administrative
penalty may be made - paragraph (2)(e).
The following are the
features of the set-off facility - subsections (4) to (9)
inclusive:
- where a diesel fuel applicant has received an
administrative penalty notice in accordance with
subsections (1), (2) (3), the applicant may, within 21
days, write to the CEO requesting a set-of of some or all of the applicant's
anticipated diesel fuel rebate entitlement for the next 12 months -
subsection (4);
- the CEO may grant the request if the CEO is
satisfied that diesel fuel rebate is likely to become payable over the next 12
months - subsection (5);
- if the CEO rejects the request for
set-off, the applicant may still pay the amount specified in the penalty notice
(the notice amount) and thereby become immune from prosecution for
any offence in relation to the rebate to which the penalty notice relates -
subsection (6).
- Subsection (7) provides that, where the
CEO accepts the request, and the applicant's anticipated entitlement over the
next 12 months exceeds "the notice amount" - then the set-off
proceeds over that 12 months until "the notice amount" is
extinguished paragraph 7(a)
- Where the CEO accepts the
request, and the applicant's anticipated entitlement over the next 12 months
does not exceed "the notice amount", then the
set-off may only proceed if the applicant pays the balance, (ie "the
notice amount" less the anticipated entitlement), within 21 days -
paragraph (b). Where the applicant does so, the applicant becomes
immune from prosecution for any offence in relation to the rebate to which the
penalty notice relates (subsection (8)), and the set-off will then
proceed over the next 12 months.
- If a set-off proceeds, but "the
notice amount" is not completely extinguished at the end of 12 months,
then so much of "the notice amount" as remains unpaid at the end
of the 12 months becomes a debt due to the Commonwealth and may be recovered in
a court of competent jurisdiction. (subsection (9))
· This
is the only occasion when an amount of administrative penalty may be recovered
as a debt. The rationale for this is that the applicant, having made an
agreement to pay "the notice amount" and having thereby obtained
immunity from prosecution, should be required to honour the terms of that
agreement.
New Section 78AC Voluntary notification of
error
New section 78AC provides that a person may obtain
immunity from prosecution under the Excise Act by coming forward and voluntarily
admitting an error.
Subsection (1) provides that immunity is only
available where:
- the voluntary admission take place in advance of any
notification of audit under new section 78AD (as to which, see
below) - paragraph (a); and
- the CEO amends the applicant's
assessment under new section 78AE to take account of the error -
paragraph (b); and
- the person pays to the Commonwealth any
amount overclaimed - paragraph (c).
Subsection (2)
provides that subsection (1) does not affect the person's liability under
another Act in respect of any error or errors in the application.
New
Section 78AD Audit of diesel fuel rebate applications
New
subsection 78AD(1) provides that, for the purposes of auditing a particular
diesel fuel rebate application, the CEO may, within 5 years after the making of
that application, give the applicant notice:
- that the applicant is required
to substantiate the entitlement to any rebate applied for under the application
- paragraph (a); and
- that, for the purposes of the audit, an
authorised officer may wish to exercise all or any of the powers conferred by
section 78AD - paragraph (b).
Subsection (2) sets out the
powers of an authorised officer, for the purposes of auditing a claim for diesel
fuel rebate. Under these provisions an authorised officer may:
- require the applicant to demonstrate the method, or the operation of
any record keeping or accounting system, employed in arriving at the particulars
or estimates included in the application and in the related diesel fuel records
paragraph (a);
- conduct testing of the above record keeping
or accounting system in order to determine the accuracy of the system in
arriving at those particulars or estimates
paragraph (b);
- require the applicant within a period
notified by the authorised officer, to make available for inspection diesel
fuel records that substantiate the applicant's claim -
paragraph (c).
· means of compliance with this provision
is dealt with in subsection (3).
· failure to comply entails a
strict liability offence - see subsections (8) and(9).- examine, make and
retain copies of, or take and retain extracts from, any records made available
in accordance with a requirement under paragraph (c) above -
paragraph (d);
- examine any premises, whether indicated by the
diesel fuel records or by the applicant, where diesel fuel the subject of the
application has been, or is, used or stored -
paragraph (e).
· The premises which may be examined under
this provision are limited by subsections (4) and (5). In particular,
examination of residential premises is prohibited in all but a few
exceptional cases;
· subsection 78AD(13) provides that an
authorised officer proposing to enter premises must produce identification on
request
- examine any receptacle in which diesel fuel the subject of the
application has been stored, or is stored, and to inspect, take and retain
samples of, any fuel stored in it - paragraph (f);
- board and
examine any vessel, or examine any vehicle or machine, in the control of the
applicant, in which diesel fuel the subject of the application has been used or
is used, and to examine, take and retain samples of, any fuel in that vessel,
vehicle or machine - paragraph (g);
· examination of a
vessel under this provision is limited by subsection (6). In
particular, examination of the "residential" portion of the vessel
(ie the crew's quarters) is prohibited in all but a few exceptional
cases;
· subsection 78AD(7) makes it clear that this power
includes the power to conduct tests of the vessel, vehicle or machine,
etc;
· subsection 78AD(13) provides that an authorised officer
proposing to enter premises must produce identification on request
- require
the applicant to answer any questions concerning the diesel fuel the subject of
the application - paragraph (h).Subsection (3) provides for
the means of compliance with a requirement under paragraph (2)(c)
that the applicant make available for inspection diesel fuel records that
substantiate the applicant's claim. In compliance with such a requirement, the
applicant may:
- send or give the diesel fuel records to the authorised
officer - paragraph (a);
- if the records are maintained at the
residential premises of the applicant - by consenting to their examination, at
any reasonable time, by the authorised officer at those premises -
paragraph (b).
· subsection 78AD(13) provides that an
authorised officer proposing to enter premises must produce identification on
request
- if the records are maintained at premises that are not residential
premises - by notifying the authorised officer that the records may be examined,
at any reasonable time, by the authorised officer at those premises -
paragraph (c).
Subsections (4) and (5) provide that the
power of an authorised officer under paragraph (2)(e) to examine
premises, extends to the power to examine residential premises only
if:
- the application for rebate is made under paragraph 78A(1)(b) (ie
for the generation of electricity at residential premises), and the occupant of
the premises consents - subsection (4);
- the application for
rebate is made under paragraphs 78A(1)(c) or (d) (ie at a hospital or nursing
home or other medical or nursing institution, or at a home for aged persons),
and the occupant of the premises consents -
subsection (5).
· subsection (13) provides that an
authorised officer must produce identification on request.
Subsection
(6) provides that the power of an authorised officer under
paragraph (2)(g) to board a vessel, extends to the power to examine
that part of the vessel that comprises the living quarters for any of the crew
of the vessel only if the application for the fuel is made under paragraph
78A(1)(b) (ie for the generation of electricity at residential premises), and
the person in charge of the vessel consents.
Subsection (7) provides
the power of an authorised officer under paragraph (2)(g) to examine
a vessel vehicle or machine includes a power to conduct, or supervise the
conducting of, a test of the vessel, vehicle or machine in order to determine
its rate of diesel fuel consumption.
Subsection (8) imposes a penalty
for refusing or failing to provide records that substantiate a claim for diesel
fuel rebate, where one has received notice to do so;
· This is the
second of the new strict liability offences, to cover the sanction for a failure
to substantiate an entitlement to rebate via the new audit powers of diesel fuel
records.
· The penalty is an amount not exceeding the amount applied for
and not substantiated.
Subsection (9) provides that this offence is an
offence of strict liability;
Subsection (10) provides that, in
determining whether diesel fuel records substantiate a person's entitlement to
rebate applied for in respect of particular fuel, any particulars gathered by
the authorised officer in the exercise of the audit power under this section are
to be taken into account.
Subsection (11) provide for the gazettal by
the CEO of standard rates of diesel fuel consumption in relation to specified
kinds of vessels, vehicles or machines.Subsection
(12) provides that, where an applicant relies on the
gazetted rates in an application, those rates will be accepted on a
"no-questions-asked" basis; on the other hand, where the applicant claims at
consumption rates higher than the gazetted rates, then the applicant's diesel
fuel records are not to be taken to substantiate a claim unless the higher rate
of consumption is actually established by the applicant
paragraphs (a),(b) and (c).Subsection (13) provides that
in entering premises or boarding a vessel, an authorised officer must, on
request, produce written evidence of the fact that he or she is an authorised
officer. Failure by the authorised officer to comply means the authorised
officer is not authorised to enter the premises or board the
vessel.
Subsection (14) provides that the occupier of premises
entered, or a vessel boarded, in accordance with this provision, must provide
the authorised officer with all reasonable facilities and assistance for the
effective exercise of the officer's powers. This subsection makes it an offence
for the occupier to fail to comply with a penalty of 10 penalty units, or
$1000;
Subsection (15) provides that a person is not excused, on
self-incrimination grounds, from answering a question or making available a
record when required by an authorised officer under subsection (2); however, a
person's answer or production of records may not be used in evidence against the
person in any proceedings except proceedings under the Excise
Act.
Subsection (16) provides that the CEO is not prevented from
auditing, at a particular time, a number of diesel fuel applications made by the
same person.
New Section 78AE CEO may amend the assessment of a person's
rebate entitlement
New section 78AE provides the means by which the CEO
may amend the assessment of an applicant's rebate entitlement.Subsection
(1) provides that the CEO may, subject to the conditions set out in
subsections (2), (3) and (4), amend an assessment within 5 years after the
making of a diesel fuel application.
Subsection (2) provides that the
CEO may amend an assessment where the CEO becomes aware of a sale, disposal or
loss of the fuel which is the subject of the rebate application.
The
subsection envisages that the CEO may become aware of those circumstances in the
following ways:
- (i) the applicant may notify the sale, disposal or loss in
accordance with section78AA- paragraph (a).
· New section
78AA imposes an obligation on applicants to notify the CEO of a sale,
disposal or loss within 21 days.
· Where an applicant notifies the sale,
disposal or loss within 21 days, the applicant is protected from prosecution or
penalty by operation of new section 78AC;
· In these
circumstances, in relation to the rebate which is the subject of the
notification, the CEO may simply amend the assessment and seek recovery of the
overclaimed rebate;
- (ii) the CEO may otherwise become aware of such a
sale, disposal or loss - paragraph (b).· In such a case, the
CEO may have trade knowledge or personal information (knowledge from an audit is
covered under subsection (4) ).
· The applicant may have also failed to
notify the CEO of a sale, disposal or loss within 21 days, in accordance with
new section.
· For that reason, the applicant can gain no
protection from prosecution or penalty by operation of new section
78AC.
· In these circumstances, in relation to the rebate which the
CEO has been made aware, the CEO may amend the assessment, and either proceed
against the person under the strict liability provision
(new section 78AA) or issue a penalty notice under new section
78AB, seeking recovery of the overclaimed rebate and imposing a penalty of 20%
of that amount.
Subsection (3) provides that the CEO may amend an
assessment where the CEO becomes aware of errors in a diesel fuel
application.· Where the applicant has voluntarily disclosed the errors
prior to any notification of audit, the applicant is protected from prosecution
or penalty by operation of new section 78AC.
Subsection
(4) provides that the CEO may amend an assessment where an audit is
conducted under new section 78AD, and the CEO is satisfied, having regard
to the results of the audit, that the assessment should be amended.
· In
this case, the audit may have revealed that the applicant has failed to notify
the CEO of a sale, disposal or loss within 21 days in accordance with new
section 78AA; or the audit may have revealed errors in the
application.
· For that reason, the applicant can gain no protection
from prosecution or penalty by operation of new section
78AC.
· In these circumstances, the CEO may amend the assessment,
and either proceed against the person under the strict liability provision
(new subsection 78AD(8)) or issue a penalty notice under new
section 78AB, seeking recovery of the overclaimed rebate and imposing a penalty
of 20% of that amount.
Subsection (5) provides that the CEO may not
amend an assessment to the extent that, following a Court or AAT decision in
relation to another person, it becomes clear that a different amount of rebate
was payable in respect of that person's application.
· This provision
permits applications which have been applied for and paid in good faith prior to
the decision concerned, to remain undisturbed to the extent of the revised
perception of eligibility introduced by that decision.
Subsection (6)
provides that, where the CEO amends an applicant's assessment, but chooses not
to issue a penalty notice under new section 78AB, then the CEO must
notify the applicant in writing of the amendment, and inform the applicant that
the decision is reviewable by the AAT
· Item 26 of Schedule 2 amends
section 162C to introduce new paragraph 162(1)(fa), conferring the
Tribunal with jurisdiction in relation to this decision.
Subsection
(7) provides that, where the CEO amends an applicant's assessment resulting
in an amount becoming repayable by the applicant, that applicant must repay that
amount to the Commonwealth.
- Where a person fails to pay that amount, it
becomes a debt due to the Commonwealth and may be recovered in a court of
competent jurisdiction - paragraph (b). This is subject to subsection
(9) below.
Subsection (8) provides that, where the CEO amends
an applicant's assessment resulting in a further amount of rebate becoming
payable to the applicant, the CEO must pay that amount to the applicant as soon
as practicable.
Subsection (9) provides that, where the CEO amends an
applicant's assessment and proceeds to issue a penalty notice under the new
administrative penalty option in new section 78AB, resulting in an
amount becoming payable by the applicant, then that amount may not be recovered
under subsection (7).
- In these circumstances, where the applicant fails to
pay the amount of penalty, or fails to repay the amount of overclaimed rebate
(and does not make a satisfactory set-off arrangement under that section), then
the CEO may only seek recovery by prosecuting the applicant for a strict
liability offence.
New Section 78AF - CEO's power to seek
information
New section 78AF provides that the CEO may seek
information from the head of a Department or authority of the Commonwealth, or
of a State or Territory, or the head of a local authority or any other person,
in connection with diesel fuel that is the subject of an application for diesel
fuel rebate· This will provide a sufficient head of power to approach
agencies about the release of information they might possess on particular
diesel fuel purchases, and the like.
Item 11 - Modernisation
This
Item amends subsection 80(2) of the Act by inserting the phrase "(other than
diesel fuel rebate)" after "rebate of duty".
Section 80 of the Act provides
the general power of recovery for overpaid duty rebate etc.
The effect of
this amendment is to remove diesel fuel rebate from the operation of section 80
of the Act. This section sets out the circumstances for the recovery of,
amongst other things, rebates of duty that have been paid to a person and the
whole or part of the rebate was not payable to him. Currently, diesel fuel
rebate is included in this section.
New subsection 78AE(7) of the Act (item
10 of Schedule 2) inserts new provisions for the recovery of diesel fuel rebate
in the circumstances where a person was not entitled to the rebate that was paid
to the person. Therefore, diesel fuel rebate no longer needs to be included in
the operation of section 80.
Item 12 - Modernisation
This Item
amends the Act by repealing subsection 80(3).
Currently, subsection 80(3)
sets out circumstances under which the CEO shall not demand the repayment of
rebate which was not payable to a person under subsection 80(2), as a result of
AAT and Court decisions, etc.
· This matter is now dealt with in new
subsection 78AE(5) (item 10 refers)
Item 13 - Section
80A
This Item amends section 80A by omitting all references to
"subsection 78A(2) or 165(3)" and substituting 78AE(7)".
Currently, both
subsection 78A(2) and subsection 80(2) sets out circumstances under which diesel
fuel rebate which has been paid to a person must be repaid by the person. Under
subsection 78A(2), it is repayable where a person purchases diesel fuel for a
eligible use and has been paid rebate and then uses the fuel in a non-eligible
use. Under subsection 80(2), it is repayable where rebate has been paid rebate
and it was not actually payable to him. Section 80A sets out the specific
circumstances where the amounts that are liable to be repaid under subsection
78A(2) or 80(2) can be set-off against amounts of diesel fuel rebate that the
Commonwealth at the same time is liable to pay to a person. This set-off
provision is separate from the proposed new set-off provision in new section
78AB, which relates to set-offs of combined penalty and rebate amounts.
As previously referred to, new provisions for the repayment of diesel fuel
rebate by a person are being inserted by new subsection 78AE(7) and removed from
subsections 78A(2) and 80(2). This item, therefore, amends section 80A to refer
to the new provision under which a person is liable to repay diesel fuel rebate
to ensure that the set-off provisions in section 80A continue to apply in their
limited circumstances only.
Item 14 - Modernisation
This Item
contains a mechanical provisions to move current section 80A to immediately
before section 79 and to renumber it as section 78AG. The purpose of this move
is to locate this provision dealing with diesel fuel rebate scheme set-offs with
all other provisions relating to the Diesel Fuel Rebate Scheme.
Item 15 -
Modernisation
This Item amends the Act by repealing section
99A.
Section 99A presently sets out the powers of authorised officers for the
purposes of the Diesel Fuel Rebate Scheme, including the circumstances under
which they may enter premises and inspect stocks of diesel fuel and any
accounts, books, documents or other records that relate to the purchase, sale or
use of diesel fuel.
New provisions governing the powers of the authorised
officers for the Diesel Fuel Rebate Scheme are being inserted by new section
78AD of the Act (item 10 of Schedule 2 refers) and, as a consequence,
section 99A is to be repealed.
Item 16 - Modernisation
This Item
amends paragraph 120(1)(vb) by inserting the phrase "(other than diesel fuel
rebate)" after "rebate".
Section 120 sets out the Excise offences and their
penalties. Currently, paragraph 120(1)(vb) provides that a person shall not
obtain any drawback, refund, rebate or remission which is not payable.
Presently, the reference to "rebate" includes diesel fuel rebate.
Item 17
(below) inserts new paragraph 120(1)(vc) which contains an offence relating to
diesel fuel rebate only. Therefore, the purpose of this Item is to amend
paragraph 120(1)(vb) to remove diesel fuel rebate from its coverage.
Item
17 - Modernisation
This Item amends the Act by inserting new paragraph
120(1)(vc) into subsection 120(1).
New paragraph 120(1)(vc) inserts a
new Excise offence and provides that a person shall not knowingly or recklessly
obtain or retain diesel fuel rebate to which the person is not entitled under
section 78A.
Item 18 -Modernisation
This item amends the Act by
inserting new paragraph (ca) into subsection 120(2).
Subsection 120(2)
sets out the penalties which apply upon conviction for the contravention of the
Excise offences in subsection 120(1). New paragraph 120(2)(ca) sets out
the penalty which applies in the case of an offence against new paragraph
120(1)(vc), ie where a person knowingly or recklessly obtains or retains
diesel fuel rebate to which the person is not entitled under section 78A. In
this case, the penalty is one not exceeding 3 times the amount of diesel fuel
rebate that was obtained or retained by the commission of the offence.
This
maximum penalty level is to be compared to the maximum penalty of an amount not
exceeding 100% of the "overclaim" prescribed for the two new strict liability
offences, and the 20% level for the administrative penalty.
Item 19 -
Modernisation
This Item amends paragraphs 120(2)(d) by inserting a
reference to subsection 120(4). New subsection 120(4) is to be inserted
by Item 20 below.
Item 20 - Modernisation
This Item inserts new
subsection 120(4) into section 120.
New subsection 120(4) inserts a new
penalty provision in respect of convictions for the contravention of paragraph
120(1)(d) in respect of an amount of diesel fuel rebate applied for by a person
under section 78A. Paragraph 120(1)(vi) provides that a person must not
knowingly or recklessly make a statement to an officer that is false or
misleading in a material particular or omit from a statement made to an officer
any matter or thing without which the statement is misleading in a material
particular. This penalty will apply in respect of such statements or omissions
made in respect of any amount of diesel fuel rebate, for example in an
application for diesel fuel rebate made under subsection 78A(1A).
New
subsection 120(4) provides that if a person is convicted of such an offence, a
court may, in relation to the offence impose a penalty not exceeding the sum of
$5,000 and twice the amount by which the rebate applied for exceeds the rebate
to which the person would have been entitled had the person not made the false
or misleading statement, or the omission, to which the offence
relates.
Item 21 - Modernisation
This Item amends section 128A by
repealing subsections 128A(1) and (2) and substituting them with new
subsection 128A(1), (2), (2A), (2B) and (2C).
Currently, section 128A
contain the provisions governing the retention of all relevant rebate documents
by a person who applies for diesel fuel rebate under section 164. As part of
the modernisation process, the document retention provisions are being
expanded.
New subsection 128A(1) provides that a person (to be known
as the applicant) who makes a diesel fuel rebate application in
respect of particular diesel fuel (to be known as the application
fuel) must maintain, or create and maintain, diesel fuel records in
relation to:
(a) the application fuel; and(b) any fuel that has been or is
stored with the application fuel;
until the end of the retention period in
relation to those records worked out under new subsection
128A(2A).
This requirement is more comprehensive than the present
requirements under subsection 128A(1), which only require the applicant to
maintain relevant documents that came into the applicant's possession. The new
requirements require the applicant to create and maintain the diesel fuel
records. Also the current requirements only apply in respect of the diesel fuel
to which the application relates whereas the new provisions also apply to any
fuel that has been or is stored with the application fuel.
New subsection
128A(2) then specifies those records which are diesel fuel records in
relation to both the application fuel and the fuel that has been or is stored
with that particular application fuel. This provisions, however, is not to
limit the generality of the phrase "diesel fuel records" in subsection
128A(1).
Under subsection 128A(2), the diesel fuel records are records
of:
(a) particulars of the purchase of the fuel;(b) particulars of the place
at which, and of the facility in which, the fuel is or was stored if the fuel is
stored by the person who purchased it pending its use;(c) if the fuel has been
used:· the place at which, or the vessel, vehicle or machine in which,
the fuel was so used; and· when the fuel was used; and · the
actual nature of the use, including the log books or other operating records
of the vessel, vehicle or machine involved; and(d) the particulars of the sale
or other disposal if the fuel has been sold or otherwise disposed of by the
person who purchased it; and(e) particulars of the loss if the fuel has been
lost for a reason that is known to the person who purchased it; and(f) if the
application fuel constitutes a portion of the fuel purchased, the particulars of
the basis on which the apportionment is made; and (g) such other records as the
regulations prescribe.
New subsection 128A(2A) then sets out the
retention periods for diesel fuel records for the purposes of this section.
In relation to application fuel, the retention period for diesel fuel
records is 5 years form the making of the application in respect of that
fuel.
· 5 years is currently prescribed in existing subsection
128A(1);
In relation to fuel that is not application fuel but that has
been or is stored with application fuel, the retention period is 5 years from
the making of the application in respect of that application fuel.
New
subsection 128A(2B) applies to the situation where diesel fuel purchased for
a purpose for which rebate is payable is stored with other diesel fuel purchased
for such a purpose so that particular fuel loses it identity. Under these
circumstances, to the extent that the fuel is no longer stored, it is presumed
to have been drawn off in the order of its purchase.
· The purpose of
this subsection is to enable an applicant, or an authorised officer conducting
an audit, to be certain as to when the record-keeping obligations in relation to
any particular purchase of fuel have been acquitted, for the purpose of
substantiating a claim for diesel fuel rebate.
New subsection 128A(2C)
applies to the situation where diesel fuel purchased for a purpose for which
rebate is payable (rebateable fuel) is stored with other diesel
fuel purchased for any other purpose (non-rebateabe fuel) so that
both types of fuel lose their particular identity. Similar to subsection
128A(2B), rebateable fuel, to the extent that it is no longer stored, is
presumed to have been drawn off in the order of it's purchase and non-rebateble
fuel, to the extent that it is no longer stored, is presumed to have been drawn
off in the order of its purchase.
· The purpose of this subsection is to
enable an applicant, or an authorised officer conducting an audit, to be certain
as to when the record-keeping obligations in relation to any particular purchase
of fuel have been acquitted, for the purpose of substantiating a claim for
diesel fuel rebate.
Item 22 - Modernisation
This Item amends
subsection 128A(3) by omitting all references to "document" and substituting
"record".
· diesel fuel records is defined by Item 3 as
records, including records in documentary form. The phrase "records"
countenances both documentary and computer records.
Subsection 128A(3)
provides that, in specified circumstances, the requirements of the section are
taken to have been complied with if a true copy of a document is kept instead of
the document itself. This amendment substitutes all references to "document" in
subsection (3) with "record" to ensure that this provision continues to apply to
the new diesel fuel records which will be required to be kept in accordance with
subsection 128A(1) and (2).
Item 23 - Modernisation
This
Item repeals current subsections 128A(4) and (5) and substitutes a new
subsection 128A(4). This new subsection reiterates the current provisions of
subsection 128A(4) and (5) but removes the requirement for an applicant to
certify a copy of a diesel fuel record.
Item 24 -
Modernisation
This item amends section 128A by omitting
subsections (6) and (7).
Subsection 128A(6) currently imposes obligations
upon an applicant who is required to keep documents that come into the
applicant's possession. These obligations have been subsumed by new subsections
128A(1) and 128A(2).
Item 25 - Modernisation
This item
amends subsection 128A(8) by omitting all references to "document" and
substituting "record".
Subsection 128A(8) currently specifies the
circumstances in which section 128A does not require the keeping of any
documents. This amendment substitutes all references to "document" in
subsection (8) with "record" to ensure that this provision continues to apply in
respect of the new diesel fuel records (including records in documentary form)
which will be required to be kept in accordance with subsections 128A(1)
and (2).
Item 26 - Modernisation
This item amends
subsection 162C(1) by repealing paragraphs (faa) and (fa) and substituting new
paragraphs (faa) and (fa).
Subsection 162C(1) sets out those decisions under
the Act which can be subject to review by the Administrative Appeals
Tribunal(AAT). Currently, paragraph (faa) specifies a decision of a Collector
under subsection 78A(2) demanding repayment of rebate. The current provisions
of subsection 78A(2) demanding repayment are being repealed and incorporated
into new section 78AE. Therefore this paragraph is also to be repealed as no
such decision will exist in subsection 78A(2).
New paragraph (faa)
refers to a decision of the CEO under subsection 78A(1G) that the CEO is
satisfied of the matter referred to in that subsection. Under subsection
78A(1G), the CEO may be satisfied that a person who is required to provide
information under subsection 78A(1F) (the new survey information power -
item 7 refers ) fails to comply with that requirement. This
decision will be subject to review by the AAT.
New paragraph (fa)
refers to a decision of decision of the CEO under section 78AE to amend the
assessment of a person's rebate entitlement. This decision will be subject to
review by the AAT.
However, this decision will not be subject to review by
the AAT if such a decision is made in conjunction with the issuing by the CEO of
a notice under section 78AB (the administrative penalty option) in respect of
that rebate entitlement. This is because, if the person refuses to pay the
administrative penalty, recovery of the penalty is not
enforceable
· this is a key feature of the administrative
penalty system; ie where a person refuses to pay the administrative penalty,
the provisions are designed such that the only sanction then available to the
CEO is to prosecute in a Court for one of the two new strict liability
offences;
· under this system, a person who disputes the facts
underpinning the imposition of the penalty and refuses to pay is guaranteed
that, without that person's consent, no penalty can be exacted other than by
order of a Court;
· in these circumstances, AAT review would only
"second-guess" the ultimate decision of the Court, and is not
appropriate.
Item 27 - Eligibility
This item provides the
amendments of the Act in item 6 of Schedule 2 applies only in relation to diesel
fuel:
(a) that is purchased before, on or after the day on which those items
commence; and
(b) that is not diesel fuel in respect of which an application
for diesel rebate is made under section before, on, or within 3 months after,
that day.
These items contain the amendments to the provisions relating the
eligibility for diesel fuel rebate and, as previously referred to, it is
expected that these items will be proclaimed to commence as soon as practicable
after this Act receives the Royal Assent.
The effect of this application clause is that, once these items commence, there will be a three month sunset period within which applications for diesel fuel rebate can be made which will be governed by the eligibility provisions in force before the amendments commence. Applications lodged before, or on, that day, will continue to be governed by the eligibility provisions in force before the amendments commence. However, any applications for rebate which are made after that three month period will be governed by the amended eligibility provisions regardless of the date of purchase of the diesel fuel, which could be before the date the amendments commenced.
Item 28
-Modernisation
This item provides that the amendments of the Act
in the items of Schedule 2, other than item 6, apply only in relation to diesel
fuel in respect of which an application for diesel fuel rebate is made under
section 78A of that Act on or after the day on which those first-mentioned items
commence (whether the fuel was purchased before or after that day).
These
first-mentioned items contain the provisions relating to the modernisation of
the Diesel Fuel Rebate Scheme and, as previously referred to, it is expected the
these items will be proclaimed to commence on a date to be fixed six months
after the Act receives the Royal Assent.
The effect of this application clause is that, once this Act receives the Royal Assent, there will be a six month period within which applications for diesel fuel rebate can be made which will not be governed by the new modernisation provisions. However, any applications for rebate which are made after the modernisation items commence will be governed by these new provisions regardless of the date of purchase of the diesel fuel, which could be before the date the amendments commenced.
""the notice amount", 18, 42Aabsence of
a beneficiation process, 14accident, 7, 14, 38administrative penalty, 17,
41administrative penalty not enforceable, 18administrative penalty of 20%, 17,
40alumina, 9ANAO, 6, 37application, 3, 34application for rebate, 5,
36assessment, 8, 39audit, 20audit powers, 16, 20, 40, 44Australian National
Audit Office, 16, 40Bbauxite, 9beneficiation, 8, 9beneficiation of salt,
10building, 13Ccommon salt, 9, 10conduct a test of the vessel, vehicle or
machine, 22construction, 13copper, 9criminal penalty, 16, 40crude oil, 9DDampier
Salt, 10, 15dams for polluted water, 12dams for unpolluted water, 12diesel fuel
records, 3, 21, 22, 31, 34, 44, 45, 54direct return journey, 11disposing of
fuel, 7, 14, 38dredging, 13dressing, 10Dyno Wesfarmers, 4, 35Eeconomic
factors are to be disregarded, 15Ffork-lift, 13front-end loader, 13Ggold, 9gross
vehicle weight, 10Hhome for aged persons, 22hospital, 22Iimmunity from
prosecution, 19, 20Llandscaping, 13living quarters for the crew of a vessel,
22losing fuel, 7, 14, 38loss of diesel fuel, 14Mmaterials transported to the
place of beneficiation, 11Modernisation - overview, 16, 40modernisation -
summary of new sections, 16Nnatural gas, 9naturally occurring minerals, 10New
s164AB - Voluntary notification of error, 20New Section 164AC Audit of diesel
fuel rebate applications, 20New Section 164A - Notification of sale, 17New
Section 78AA - Notification of sale, 41notices of intention, 7, 38nursing home,
22Pparticulars or estimates, 21production of common salt by evaporation,
11public road transport, 11Qquarrying, 13Rreactivation of carbon, 12rebate
ceases to be payable, 17, 41record-keeping obligations, 16, 40recovery of
minerals - endpoint, 14refusal to pay penalty, 18residential premises, 21, 22,
45, 46return journeys, 11risk-management strategy, 6, 37road making, 13road
vehicle, 4, 35Ssalt, 9, 10samples, 21, 45sea, 11searching for ground water,
12self assessment, 3, 34self-assessment, 6, 37set-off - administrative
penalties, 19, 43set-off of amounts owing, 17, 41standard rates of fuel
consumption, 23, 47stock tank oil, 9stockpile - end of recovery, 14strict
liability penalty, 16, 17, 40, 41subcontractor, 15substantiation of rebate
claims, 20, 44survey, 6, 37survey - failure to complete, 6, 37Ttailings dams,
12take and retain samples, 21, 45theft, 7, 14, 38tractor, 13transport by sea,
11transport networks, 13transport of the recovered minerals, 11Uuranium,
9Vvehicle not exceeding 3.5 tonnes, 13vehicles used underground, 13vessel, 21,
45voluntarily notifying an error, 20