EXPLANATORY STATEMENT
Administrative Decisions (Judicial Review) Act Regulations (Amendment)
Statutory Rules 1987 No. 188
Issued by the Authority of the Attorney-General
Section 20 of the Administrative Decisions (Judicial Review) Act 1977 (“the Act”) provides that the Governor General may make regulations, not inconsistent with the Act, prescribing matters that are required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 19 of the Act provides that the regulations may declare a class or classes of decisions to be decisions that are not subject to judicial review by the Federal Court of Australia under the Act.
Section 5 of the Act empowers the Federal Court of Australia to review certain administrative decisions of Ministers and officers acting under Commonwealth laws.
Paragraph (e) of Schedule 1 of the Act excludes from review under the Act decisions affecting the assessment or calculation of taxation, including customs and excise duties, made under the Australian Capital Territory Taxation (Administration) Act 1969.
Part VIII of the Taxation Laws Amendment (No. 2) Act 1987 (Act No. 62) terminated the imposition of taxes and duties under certain taxation laws relating to the Australian Capital Territory and provided for the transfer of the administration of those laws from the Commissioner of Taxation to the Commissioner for Australian Capital Territory Revenue Collections appointed under the Taxation Administration Ordinance 1987 of the Australian Capital Territory. This transfer came into effect on 1 August 1987 when Part VIII of the Taxation Laws Amendment (No. 2) Act 1987 was proclaimed and the Taxation (Administration) Ordinance 1987 was proclaimed.
The Regulation will exclude from review under the Act decisions made under the amended Business Franchise (Tobacco and Petroleum Products) Ordinance 1984, the Payroll Tax Ordinance 1987, the Stamp Duties and Taxes Ordinance 1987 and the Taxation (Administration) Ordinance 1987 which commenced operations on 1 August 1987 and the Financial Institutions Duty Ordinance 1987 which commenced operation on 1 September 1987.
The effect of the Regulation is to exclude certain classes of taxation decisions from judicial review by the Federal Court of Australia under the Act. This is consistent with existing policy that review of assessment or calculation of tax or duty decisions should be subject to the ordinary procedures for review or appeal provided in the relevant legislation under
which the tax or duty is calculated. Under the Ordinances review of decisions affecting the assessment or calculation of taxation will be undertaken by the Administrative Appeals Tribunal. An appeal from a decision of the Administrative Appeals Tribunal on a question of law may be made to the Federal Court, (section 44, Administrative Appeals Tribunal Act 1975).
Overview
The Administrative Decisions (Judicial Review) Act Regulations (Amendment) Statutory Rules 1987 No. 188 was enacted to align with the changes in tax administration procedures within the Australian Capital Territory, as outlined in the Taxation Laws Amendment (No. 2) Act 1987. This amendment was introduced to ensure that certain taxation decisions made under specific ordinances are not subject to judicial review by the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977. The regulation was issued under the authority of the Attorney-General and serves to maintain the existing policy that review of tax assessment or calculation decisions should be conducted through the ordinary procedures and appeals mechanisms provided in the relevant legislation, with review undertaken by the Administrative Appeals Tribunal and potential appeals on questions of law made to the Federal Court.
Scope and Application
The Administrative Decisions (Judicial Review) Act Regulations (Amendment) Statutory Rules 1987 No. 188 primarily serve to exclude certain classes of taxation decisions from judicial review by the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977. The regulation aligns with the existing policy that review of assessment or calculation of tax or duty decisions should be subject to the ordinary procedures for review or appeal provided in the relevant legislation under which the tax or duty is calculated. This amendment ensures that decisions made under the amended Business Franchise (Tobacco and Petroleum Products) Ordinance 1984, the Payroll Tax Ordinance 1987, the Stamp Duties and Taxes Ordinance 1987, the Taxation (Administration) Ordinance 1987, and the Financial Institutions Duty Ordinance 1987, which commenced operations from 1 August 1987 and 1 September 1987 respectively, fall outside the scope of judicial review by the Federal Court. Instead, review of these decisions will be undertaken by the Administrative Appeals Tribunal, with an appeal from the Tribunal on a question of law being available to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975.
Key Provisions
The Administrative Decisions (Judicial Review) Act Regulations (Amendment) Statutory Rules 1987 No. 188 (the “Regulation”) amend the Administrative Decisions (Judicial Review) Act 1977 (the “Act”) to exclude certain classes of taxation decisions from review by the Federal Court under the Act. Specifically, the Regulation excludes decisions made under the amended Business Franchise (Tobacco and Petroleum Products) Ordinance 1984, the Payroll Tax Ordinance 1987, the Stamp Duties and Taxes Ordinance 1987, the Taxation (Administration) Ordinance 1987, and the Financial Institutions Duty Ordinance 1987 from review under the Act. These exclusions align with the existing policy that review of tax or duty decisions should be conducted through the ordinary procedures outlined in the relevant legislation (section 20).
The Regulation imposes obligations on the parties and entities governed by it, particularly those involved in the administration of taxation laws within the Australian Capital Territory. It mandates that certain decisions related to taxation assessments and calculations made under the specified ordinances are not subject to judicial review by the Federal Court under the Act. Instead, such decisions are to be reviewed by the Administrative Appeals Tribunal, with the possibility of an appeal on a question of law to the Federal Court (section 44, Administrative Appeals Tribunal Act 1975). This shift in review responsibility ensures that the process for reviewing tax-related decisions is managed by the appropriate administrative body as prescribed by the relevant legislation.
Failure to comply with the provisions of the Regulation may result in legal consequences for the parties involved. While the Regulation itself does not explicitly outline specific penalties for non-compliance, the exclusion of certain decisions from review under the Act means that any attempt to challenge these decisions in the Federal Court could be deemed out of scope and dismissed. Additionally, parties who do not follow the prescribed review process through the Administrative Appeals Tribunal may face procedural challenges in any subsequent appeal to the Federal Court. The effectiveness of these provisions hinges on adherence to the designated review pathways for tax-related decisions as stipulated in the relevant ordinances and the Administrative Appeals Tribunal Act.
The Regulation's impact on legal proceedings is significant, as it delineates clear boundaries for the scope of judicial review. By excluding certain taxation decisions from the purview of the Federal Court, the Regulation ensures that the judicial review process is streamlined and that tax-related disputes are handled according to the specific administrative and appeal mechanisms established under the relevant legislation. This structured approach aims to provide a more efficient and specialised review process for taxation decisions, reducing the potential for protracted litigation in the Federal Court.