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
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ISSN 1328-8091
© Commonwealth of Australia 2002
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