Bills Digest No. 122 2001-02
Australian Radiation Protection and Nuclear Safety (Licence Charges)
Amendment Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian Radiation Protection
and Nuclear Safety (Licence Charges) Amendment Bill 2002
Date Introduced:
21 March 2002
House: House
of Representatives
Portfolio: Health
and Ageing
Commencement: The
Bill will be retrospective - commencement will be taken to have been on
5 February 1999.
Purpose
To retrospectively make holders of source(1)
or facility(2) licences who are otherwise legislatively exempt
from Commonwealth taxes or charges liable to pay charges levied under
the Australian Radiation Protection and Nuclear Safety (Licence Charges)
Act 1998.
Background
Nuclear installations and facilities, radioactive material
and associated apparatus are regulated in Australia by the Australian
Radiation Protection and Nuclear Safety Agency (ARPANSA) through a licensing
system. In approving the drafting instructions for the Australian Radiation
Protection and Nuclear Safety Act 1998 (the ARPANS Act) in August
1997, Federal Cabinet decided that ARPANSA's regulatory function should
operate on a cost recovery basis.
ARPANSA levies both an application charge and an annual
charge in relation to both facility and source licences. In both cases
the imposition of the charges are authorised by an Act but the amount
of the charge is set out in regulations.
The application fee is authorised by section 34 of the
ARPANS Act and the amount set out in the Australian Radiation Protection
and Nuclear Safety Regulations 1999. The annual charge is authorised under
section 4 of the Australian Radiation Protection and Nuclear Safety
(Licence Charges) Act 1998 (the Charges Act) and the amount set out
in Australian Radiation Protection and Nuclear Safety (Licence Charges)
Regulations 2000.
Approximately $2.36 million in application and annual
charges were collected by ARPANSA in 2000-2001.(3)
Since 1999, various Commonwealth statutory authorities
such as the Australia New Zealand Food Authority, the Australian Nuclear
Science and Technology Organisation, the Commonwealth Scientific and Industrial
Research Organisation, the Australian Institute of Marine Science, the
Australian National University, the Federal Airports Corporation, and
the Australian War Memorial have paid these annual fees. These authorities
are all exempt from taxation under their relevant legislation.
In 2000, the Director of National Parks(4)
was issued a facility licence under the ARPANS Act for certain sites located
in Kakadu National Park. Acting on legal advice, the Director declined
to pay the annual licence charge on the basis of section 514W of the Environmental
Protection and Biodiversity Conservation Act 1999 (EPBCA).
Section 514W states
the income of the Australian National
Parks Fund and the property and transactions of the Director are
not subject to taxation under a law of the Commonwealth or of
a State or Territory [italics added]
The Australian Government Solicitor (AGS) was then retained
jointly by ARPANSA and the Director of National Parks to advise on the
whether the annual licence charges were a tax for the purposes of the
EPBCA and a range of other legislation relating to Commonwealth statutory
authorities holding facility or source licences.
The Chief General Counsel of the Office of the Counsel
General, AGS, agreed that the annual licence charge was a tax. A key issue
in reaching this view was that the Parliament 'clearly contemplated' that
the Charges Act was a law imposing taxation given its form(5)
and the fact that did not limit the fees that could be prescribed under
regulations. The AGS advice referred to the statement of Gibbs J in General
Practitioners Society v Commonwealth (1980) 145 CLR 532 in which his
honour said at 562 ‘an Act which gave power by regulation to impose a
tax would itself be an Act imposing taxation’. The advice considered that
while the level of the charges actually set out in the Australian Radiation
Protection and Nuclear Safety (Licence Charges) Regulations 2000 might
be consistent with a fee for service, this did not alter the fact the
Charges Act itself was an Act imposing a tax. The AGS therefore concluded
that 'the charges must, unless there is some contrary intention, be characterised
as amounting to taxation'.
Commencement
Item 2 provides that the Bill is taken to have
retrospectively commenced on 5 February 1999, the date on which Australian
Radiation Protection and Nuclear Safety (Licence Charges) Act 1998
came into force.
Schedule 1
Item 1 of Schedule 1 inserts a new section
5A. New subsection 5A(1) provides that a holder of a facility
or source licence is liable to pay the 'charge imposed' by the Australian
Radiation Protection and Nuclear Safety (Licence Charges) Act 1998
even if another law otherwise exempts them from paying 'taxes or charges'.
However, this general rule does not apply if another law specifically
exempts a person or organisation from the Australian Radiation Protection
and Nuclear Safety (Licence Charges) Act 1998: new subsection 5A(2).
It is arguable that the principal case that the AGS cites
in its advice (Practitioners Society v Commonwealth) is not a particularly
strong authority for the conclusion reached by the AGS. Neither Gibbs
J or Aiken J (his honour was also cited in the AGS advice) appear to say
in Practitioners Society v Commonwealth that a charge must necessarily
be a tax if the relevant authorising Act was intended by Parliament to
be a law imposing taxation. More recent cases such as Airservices Australia
v Canadian Airlines (1999) 202 CLR 133 concentrate on the nature of
the relevant charges to determine whether they are in fact taxes rather
than, as in the AGS advice, reaching a conclusion primarily by considering
the nature of the authorising Act.
Finally, as an aside, neither the Bill's second reading
speech or Explanatory Memorandum provide any indication if the Commonwealth
has conducted any review as to whether there are any more types of charges
or fees authorised by other Commonwealth laws that might, on the basis
of the AGS advice, be taxes.
- In general, source licences cover apparatus or material that emit
or are capable of emitting ionizing radiation.
- Facility licences would cover nuclear reactors, premises producing
radioisotopes, nuclear waste storage or disposal sites etc. Whether
a licence is required may depend on the 'activity level' of the radioactive
material at the facility.
- ARPANSA 2000-2001 Annual report p. 75.
- Part of the Environment and Heritage Portfolio.
- The Minister's second reading speech introducing the Charges Act specifically
identifies the annual charge as a tax: see House of Representatives
Debates 11 November 1998 p. 90. However, Parliament did not acknowledge
or address this issue in debating the Bill.
Angus Martyn
19 April 2002
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
© Commonwealth of Australia 2002
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
systems, without the prior written consent of the Parliamentary Library,
other than by Members of the Australian Parliament in the course of their
official duties.
Published by the Department of the Parliamentary Library, 2002.
|
