Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024

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Legislation au C2024A00103 In force Act

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Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024

No. 103, 2024

 

 

 

 

 

An Act to deal with consequential matters arising from the enactment of the Commonwealth Entities (Payment Surcharges) Act 2024 and with certain payment surcharges, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Consequential amendments

Part 1—Amendment of migration legislation

Migration (Credit Card Surcharge) Instrument (LIN 24/024) 2024

Migration (PayPal Surcharge) Instrument (LIN 24/025) 2024

Migration Regulations 1994

Migration Regulations 1994 ‑ Specification of Circumstances in Which a PayPal Surcharge Must be Waived or Refunded 2016/084 ‑ IMMI 16/084

Part 2—Other amendments

Administrative Decisions (Judicial Review) Act 1977

Australian Citizenship Regulation 2016

Customs Regulation 2015

Schedule 2—Payment surcharges charged before commencement

Part 1—Definitions

Part 2—Payment surcharges charged and collected before commencement

Part 3—Commonwealth entities (payment surcharges) tax

 

 

 

Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024

No. 103, 2024

 

 

 

An Act to deal with consequential matters arising from the enactment of the Commonwealth Entities (Payment Surcharges) Act 2024 and with certain payment surcharges, and for related purposes

[Assented to 2 December 2024]

The Parliament of Australia enacts:

1  Short title

  This Act is the Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

2 December 2024

2.  Schedule 1

At the same time as the commencement of the Commonwealth Entities (Payment Surcharges) Act 2024.

However, the provisions do not commence at all if that Act does not commence.

3 December 2024

3.  Schedule 2, Parts 1 and 2

At the same time as the commencement of the Commonwealth Entities (Payment Surcharges) Act 2024.

However, the provisions do not commence at all if that Act does not commence.

3 December 2024

4.  Schedule 2, Part 3

The later of:

(a) the commencement of the Commonwealth Entities (Payment Surcharges) Act 2024; and

(b) the commencement of the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024.

However, the provisions do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.

3 December 2024

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Note: The provisions of a legislative instrument (the principal instrument) amended by this Act, and any other provisions of the principal instrument, may be amended or repealed by a legislative instrument made under the enabling provision for the principal instrument (see subsection 13(5) of the Legislation Act 2003).

Schedule 1—Consequential amendments

Part 1—Amendment of migration legislation

Migration (Credit Card Surcharge) Instrument (LIN 24/024) 2024

1  The whole of the instrument

Repeal the instrument.

Migration (PayPal Surcharge) Instrument (LIN 24/025) 2024

2  The whole of the instrument

Repeal the instrument.

Migration Regulations 1994

3  Subregulation 2.12JA(1) (notes 1 and 2)

Repeal the notes.

4  Subregulation 2.12N(3) (notes 1 and 2)

Repeal the notes.

5  Regulations 5.41A and 5.41B

Repeal the regulations.

Migration Regulations 1994 ‑ Specification of Circumstances in Which a PayPal Surcharge Must be Waived or Refunded 2016/084 ‑ IMMI 16/084

6  The whole of the instrument

Repeal the instrument.

7  Application of amendments

(1) The amendments made by this Part apply in relation to a payment of a fee or charge, or part of a fee or charge, made on or after the commencement of this item.

(2) To avoid doubt, the repeal of the following (about waiving or refunding credit card surcharge or PayPal surcharge) made by this Part does not apply in relation to a credit card surcharge or PayPal surcharge relating to a payment if the payment was made before the commencement of this item:

 (a) subregulations 5.41A(4) and (5) and 5.41B(4) and (5) of the Migration Regulations 1994;

 (b) the Migration Regulations 1994 ‑ Specification of Circumstances in Which a PayPal Surcharge Must be Waived or Refunded 2016/084 ‑ IMMI 16/084.

Part 2—Other amendments

Administrative Decisions (Judicial Review) Act 1977

8  At the end of Schedule 2

Add:

 ; (ze) decisions under section 5 or 6 of the Commonwealth Entities (Payment Surcharges) Act 2024.

Australian Citizenship Regulation 2016

9  Section 5

Repeal the following definitions:

 (a) definition of credit card surcharge;

 (b) definition of PayPal surcharge;

 (c) definition of Schedule 3 amount.

10  Section 16

Repeal the section, substitute:

16  Fees to accompany applications

  For the purposes of paragraph 46(1)(d) of the Act, the fee to accompany an application under a provision of the Act is the amount set out in Schedule 3 to this instrument for the application.

11  Subsections 17(5) and (7)

Repeal the subsections.

12  Application of amendments

(1) The amendments of the Australian Citizenship Regulation 2016 made by this Part apply in relation to an application made under a provision of the Australian Citizenship Act 2007 on or after the commencement of this item.

(2) To avoid doubt, despite those amendments, section 17 of the Australian Citizenship Regulation 2016, as in force immediately before the commencement of this item, continues to apply, on and after that commencement, in relation to refunding the whole or part of a fee (including a credit card surcharge or PayPal surcharge) accompanying an application made under a provision of the Australian Citizenship Act 2007 if the application was made before that commencement.

Customs Regulation 2015

13  Sections 150B and 150C

Repeal the sections.

14  Application of amendments

(1) The amendments of the Customs Regulation 2015 made by this Part apply in relation to a payment of all or some duty, tax, charge, fee, security, penalty or amount specified in an infringement notice if the payment is made on or after the commencement of this item.

(2) To avoid doubt, the repeal of subsections 150B(4) and 150C(4) of the Customs Regulation 2015 (about refunding credit card surcharge or PayPal surcharge) made by this Part does not apply in relation to a refund of an amount of a payment if the payment was made before the commencement of this item.

Schedule 2—Payment surcharges charged before commencement

Part 1—Definitions

1  Definitions

In this Schedule:

Commonwealth entities (payment surcharges) tax means tax imposed by the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024.

Commonwealth entity has the same meaning as in the Commonwealth Entities (Payment Surcharges) Act 2024.

payment surcharge has the same meaning as in the Commonwealth Entities (Payment Surcharges) Act 2024.

surchargeable payment has the same meaning as in the Commonwealth Entities (Payment Surcharges) Act 2024.

Part 2—Payment surcharges charged and collected before commencement

2  Payment surcharges charged before commencement

(1) This item applies if, at a time occurring on or after 1 January 2003 and before the commencement of this Act:

 (a) a Commonwealth entity had, under a law of the Commonwealth, a State or a Territory, the power, function or duty of collecting a payment (the base payment); and

 (b) apart from this item, the base payment was not a surchargeable payment; and

 (c) the Commonwealth entity charged, or purported to charge, a payment surcharge in relation to the base payment.

(2) The Commonwealth entity is taken, by force of this item, to have always been authorised to charge the payment surcharge.

3  Payment surcharges collected before commencement

(1) This item applies if, at a time occurring on or after 1 January 2003 and before the commencement of this Act:

 (a) a Commonwealth entity had, under a law of the Commonwealth, a State or a Territory, the power, function or duty of collecting a payment (the base payment); and

 (b) apart from this item, the base payment was not a surchargeable payment; and

 (c) the Commonwealth entity collected, or purported to collect, a payment surcharge in relation to the base payment.

(2) The Commonwealth entity is taken, by force of this item, to have always been authorised to collect the payment surcharge.

4  Acquisition of property

(1) Item 2 or 3 has no effect to the extent (if any) to which:

 (a) its operation would result in an acquisition of property from a person otherwise than on just terms; and

 (b) the acquisition of property would be invalid because of paragraph 51(xxxi) of the Constitution.

(2) In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Part 3—Commonwealth entities (payment surcharges) tax

5  Commonwealth entities (payment surcharges) tax

(1) A person is liable to pay Commonwealth entities (payment surcharges) tax if:

 (a) at a time occurring on or after 1 January 2003 and before the commencement of this Act:

 (i) a Commonwealth entity had, under a law of the Commonwealth, a State or a Territory, the power, function or duty of collecting a payment (the base payment); and

 (ii) the base payment was not a surchargeable payment; and

 (iii) the Commonwealth entity charged, or purported to charge, a payment surcharge in relation to the base payment; and

 (iv) the payment surcharge was paid, or purportedly paid; and

 (b) the Commonwealth, or the Commonwealth entity, is liable to pay to the person an amount because of the matters mentioned in subparagraphs (a)(ii) to (iv).

Note 1: The base payment was a surchargeable payment if Part 2 applies to it. Item 4 limits the application of Part 2.

Note 2: The amount of the tax is set out in the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024.

(2) The Commonwealth, or the Commonwealth entity, (whichever is relevant) must set off the amount of Commonwealth entities (payment surcharges) tax that the person is liable to pay against the liability mentioned in paragraph (1)(b).

Item does not limit Imposition Act

(3) Nothing in this item limits section 6 of the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024.

Note: Section 6 of the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024 provides that Commonwealth entities (payment surcharges) tax is not imposed in relation to a base payment if the imposition would exceed the legislative power of the Commonwealth.

[Minister’s second reading speech made in—

House of Representatives on 25 November 2024

Senate on 27 November 2024]

 

(159/24)

 

Overview

The Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024, enacted on 2 December 2024 by the Parliament of Australia, addresses consequential matters arising from the Commonwealth Entities (Payment Surcharges) Act 2024. This Act provides a legislative framework to ensure that the new payment surcharges legislation does not create unintended legal issues or gaps in existing laws. By amending various legislative instruments and regulations, the Act aims to ensure a smooth transition and implementation of the new surcharge provisions while also addressing any inconsistencies or redundancies in existing laws. The policy objective is to maintain legal certainty and consistency across related Commonwealth entities and legislative instruments. The Act is structured to commence in phases, aligning with the commencement of the Commonwealth Entities (Payment Surcharges) Act 2024 and the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024. Specific provisions related to consequential amendments and the handling of payment surcharges charged or collected before the Act's commencement are detailed in the schedules. This approach ensures that the new legislation integrates seamlessly with existing legal frameworks, avoiding any potential conflicts or ambiguities.

Scope and Application

The Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024 applies to Commonwealth entities, which are defined as entities over which the Commonwealth has control or power under a law of the Commonwealth. This Act addresses the consequential matters arising from the Commonwealth Entities (Payment Surcharges) Act 2024, which regulates payment surcharges imposed by these entities. The Act also deals with payment surcharges charged and collected by Commonwealth entities before its commencement, providing legal recognition to these actions and imposing a tax on such surcharges. The Act applies nationally across Australia, with specific provisions addressing the repeal of certain migration-related surcharges and amendments to various regulations and instruments. Notably, the Act does not apply to surcharges relating to payments made before its commencement. The Act is structured to commence in stages, contingent upon the commencement of the Commonwealth Entities (Payment Surcharges) Act 2024 and the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024, with certain provisions commencing on 2 December 2024 and others on 3 December 2024, subject to the commencement of the related Acts. Subordinate instruments may extend or restrict the application of this Act further, but the primary Act itself does not provide for such extensions or restrictions.

Key Provisions

The Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Act 2024 (sections 1 to 3 and the Schedules) commences on the day this Act receives Royal Assent, which is 2 December 2024. Other provisions in the Schedules commence on 3 December 2024, subject to certain conditions related to the commencement of other related Acts. Schedule 1 of the Act makes consequential amendments to various legislative instruments, primarily focusing on the repeal of instruments and regulations related to credit card and PayPal surcharges in the context of migration legislation. This includes repealing the Migration (Credit Card Surcharge) Instrument (LIN 24/024) 2024, the Migration (PayPal Surcharge) Instrument (LIN 24/025) 2024, and specific subregulations and regulations in the Migration Regulations 1994 and the Migration Regulations 1994 – Specification of Circumstances in Which a PayPal Surcharge Must be Waived or Refunded 2016/084 – IMMI 16/084. These amendments apply to fees or charges made on or after the commencement of this Act. In addition to migration legislation, Schedule 1 also makes amendments to the Administrative Decisions (Judicial Review) Act 1977, Australian Citizenship Regulations 2016, and Customs Regulations 2015. The Act repeals certain definitions and sections in these instruments and updates fee structures, applying to applications or payments made on or after the commencement date. The Act imposes obligations on Commonwealth entities to ensure that any payment surcharges charged or collected before the Act's commencement are treated as if they were always authorised. This applies to surcharges charged or collected between 1 January 2003 and the commencement of this Act, provided the base payment was not a surchargeable payment. However, these provisions do not apply if they would result in an acquisition of property from a person otherwise than on just terms, as defined in the Constitution. Furthermore, the Act requires the Commonwealth or relevant entities to set off any Commonwealth entities (payment surcharges) tax against any liability owed to a person due to the payment surcharge. The Act also establishes that individuals are liable to pay Commonwealth entities (payment surcharges) tax if certain conditions are met, including that a Commonwealth entity charged or collected a payment surcharge before the Act's commencement. The amount of this tax is determined by the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Act 2024. The Act does not limit the imposition of this tax but ensures it does not exceed the legislative power of the Commonwealth. Failure to comply with the Act's provisions may result in civil or administrative penalties as prescribed under the relevant taxation laws or other applicable Acts.

Legal classification tags

Area of Law
Taxation Law
Instrument
Act
Concepts
Commencement Provisions
Repeal & Amendment
Commonwealth entities (payment surcharges) tax
Liability for tax
Set-off of tax
Definitions & Interpretation

Interactions

Authorises

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.