EXPLANATORY STATEMENT
Statutory Rules No. 8
Departure Tax Collection Regulations (Amendment)
(Issued by the Authority of the Minister for Immigration and Ethnic Affairs)
Section 15 of the Departure Tax Collection Act 1978 (the Act) provides that the Governor-General may make regulations not inconsistent with the Act, prescribing, inter alia, all matters required or permitted by the Act to be prescribed. Paragraph 5(1)(h) of the Act provides that tax is not payable in respect of the departure from Australia of a person who, at the time of his departure, is a person, or a person included in a class of persons, prescribed for the purposes of that section.
The amending regulations exempt the traditional inhabitants of Torres Strait who are travelling to and from Australia solely in the performance of traditional activities, from paying departure tax. The regulations are part of Australia’s implementation of the Torres Strait Treaty.
Regulation 1 sets a date for operation of the amending regulations of 15 February 1985 which was the date on which Australia ratified the Torres Strait Treaty.
Sub-regulation 2(a) amended regulation 11 of the Departure Tax Collection Regulations by adding paragraphs (n), (o) and (p) to the end of sub-regulation (1). Sub-regulation 11(1) prescribes, pursuant to section 5 of the Act, the persons who are exempted from the payment of departure tax. The new paragraphs (n), (o) and (p) add certain classes of persons to the list of persons exempted from paying departure tax:
Paragraph (n) exempts Australian citizens, who are traditional inhabitants of Australia and who are travelling in connection with the performance of traditional activities.
Paragraph (o) exempts citizens of Papua New Guinea (PNG), whose continued presence in Australia is not subject to any limitation as to time imposed by law, and who are traditional inhabitants of PNG and who are travelling in connection with the performance of traditional activities.
Paragraph (p) exempts persons who
• are PNG citizens
• entered a part of Australia that is in, or in the vicinity of, the protected zone;
• entered in the performance of traditional activities and did not remain for any other purpose;
• did not enter, during their visit, any part of Australia that is not in, or in the vicinity of, the protected zone;
• are not persons in respect of whom a declaration is in force under sub-section 8(2) of the Migration Act.
Sub-regulation 2(b) amended regulation 11 of the Departure Tax Regulations by omitting sub-regulation (2) and substituting a new sub-regulation (2). The new sub-regulation (2) contains definitions of the following:
• “area in the vicinity of the Protected Zone”
• “prescribed voyage”
• “Protected Zone”
• “Torres Strait Treaty”
• “traditional activities”; and
• “traditional inhabitants”
The sub-regulation 11(2) contained only the definition of “prescribed voyage” which was included in the new sub-regulation (2).
Overview
The Departure Tax Collection Regulations (Amendment) 1985, issued under the authority of the Minister for Immigration and Ethnic Affairs, address the gap in departure tax exemptions for traditional inhabitants of the Torres Strait involved in traditional activities. Enacted by the Australian Parliament, these regulations align with the Torres Strait Treaty, which Australia ratified on 15 February 1985. The primary policy objective is to support and recognise the cultural and traditional practices of the Torres Strait Islanders by exempting them from departure tax when travelling for traditional purposes, thereby facilitating their engagement in these activities without financial barriers. The amendments to the Departure Tax Collection Regulations of 1978 introduce specific exemptions for Australian and Papua New Guinean citizens who are traditional inhabitants and are travelling for traditional activities, ensuring they are not subject to departure tax.
Scope and Application
The Departure Tax Collection Regulations (Amendment) Statutory Rules No. 8 apply to Australian citizens, citizens of Papua New Guinea (PNG), and other persons who are traditional inhabitants and are travelling to and from Australia in connection with the performance of traditional activities. These amending regulations, which came into effect on 15 February 1985, the date Australia ratified the Torres Strait Treaty, exempt these individuals from the payment of departure tax. The regulations are designed to align with the terms of the Torres Strait Treaty, which aims to facilitate the traditional activities of inhabitants of the Torres Strait region. The exemption applies specifically to those individuals who are engaged in traditional activities and travel solely within the protected zone and its vicinity, as defined by the regulations. The scope of the exemption includes traditional inhabitants of Australia and PNG, and persons who entered Australia as PNG citizens in connection with traditional activities without remaining for any other purpose. The regulations may be further extended or clarified through subordinate instruments, ensuring that the application of the exemption remains consistent with the objectives of the Torres Strait Treaty.
Key Provisions
The Departure Tax Collection Regulations (Amendment) provides significant exemptions from the payment of departure tax for certain individuals in alignment with the Torres Strait Treaty. Under section 5 of the Act, these regulations, specifically through sub-regulation 2(a), introduce new categories of persons exempt from paying departure tax. This includes Australian citizens who are traditional inhabitants of Australia and are travelling in connection with the performance of traditional activities (paragraph 11(1)(n)), citizens of Papua New Guinea (PNG) who are traditional inhabitants of PNG and are travelling in connection with the performance of traditional activities without any limitation on their presence in Australia (paragraph 11(1)(o)), and PNG citizens who entered a part of Australia in, or in the vicinity of, the protected zone, entered in the performance of traditional activities without remaining for any other purpose, did not enter any part of Australia outside the protected zone, and are not persons in respect of whom a declaration is in force under sub-section 8(2) of the Migration Act (paragraph 11(1)(p)).
These regulations impose specific obligations on the parties involved, particularly those who seek to avail themselves of the exemptions provided. They require that individuals claiming exemption must meet the criteria set out in the amended regulation 11(1). For example, traditional inhabitants must be travelling for traditional activities, and PNG citizens must be entering and leaving Australia solely in the performance of these activities without extending their stay beyond what is permitted by law. The regulations also mandate that claimants must be able to demonstrate their status as traditional inhabitants and their compliance with the conditions of entry and departure, such as not entering areas outside the protected zone.
The Departure Tax Collection Regulations (Amendment) does not explicitly state offences, penalties, or consequences for breach. However, it is implicit that any non-compliance with the regulations could result in the individual being liable to pay the departure tax. In broader Australian legislative frameworks, failure to comply with tax regulations can lead to civil or criminal penalties, including fines or imprisonment, depending on the severity and intent of the breach. The exact penalties would be determined in the context of the specific breach and would be in accordance with the prevailing tax laws and regulations.