FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT)
EXPLANATORY STATEMENT
1987 No. 198
Subsection 60(1) of the Federal Court of Australia Act 1976 provides that the Governor-General may make regulations prescribing the fees to be paid in respect of proceedings in the Court or the service or execution of the process of the Court by officers of the Court.
The Federal Court of Australia Regulations (‘the Regulations’) prescribe the fees payable, inter alia, in respect of proceedings in the Court.
Subregulation 2(2) of the Regulations lists certain matters for which a fee is not payable under the Regulations.
The Regulation amends subregulation 2(2) of the Regulations to exempt the Commissioner of Taxation (‘the Commissioner’) from the payment of a fee for the filing of a document relating to the referral to the Court by the Commissioner of an objection decision as defined in section 14ZAB of the Taxation Administration Act 1953.
Under various taxation Acts, including the Income Tax Assessment Act 1936. a person who is dissatisfied with a decision of the Commissioner may lodge an objection. The Commissioner is required to consider the objection. If he disallows it, the person objecting (‘the objector’) may request the Commissioner to refer the decision on the objection (‘the objection decision’) to the Federal Court for review. When the referral is so made by the Commissioner, it constitutes the instituting by the objector concerned of an appeal against the objection decision.
The Regulation makes it clear that the Commissioner is not required to pay a fee on filing the relevant documents relating to the referral in the Court.
Under the Taxation Administration Act the objector is required to pay a fee to the Commissioner (which is to be the same as that applicable to the filing of originating process in the Court and the Administrative Appeals Tribunal) when requesting the Commissioner to refer the objection decision to the Court for review.
The payment by the Commissioner of a fee under the Regulations and the payment of a fee to the Commissioner by the objector under the Taxation Administration Act could have resulted, if the Commissioner were successful in the appeal, in the objector being liable to a double fee. This was not intended.
The Regulation brings the Regulations into line with the Administrative Appeals Tribunal Regulations which contain an exemption from filing fees where the Commissioner refers an appeal to the Tribunal at the request of the objector.
Authorised by the Parliamentary Secretary for Justice and Member of the Executive Council
Overview
The Federal Court of Australia Regulations (Amendment) Explanatory Statement 1987 No. 198 was enacted to address a specific procedural issue related to the payment of fees by the Commissioner of Taxation in the Federal Court. This regulation was introduced by the Commonwealth of Australia, through the Federal Court of Australia Act 1976, to ensure that there is no double fee liability when the Commissioner of Taxation refers an objection decision to the Court for review. The primary objective of this amendment is to align the Federal Court's fee structure with that of the Administrative Appeals Tribunal, thereby preventing the objector from incurring double fees in certain circumstances. By exempting the Commissioner from paying a fee when filing relevant documents, the regulation aims to clarify and rectify a potential anomaly in the existing fee framework, ensuring fairness and consistency in the judicial process.
Scope and Application
The Federal Court of Australia Regulations (Amendment) Explanatory Statement 1987 No. 198 amends the Federal Court of Australia Regulations to address a specific fee-related issue concerning the Commissioner of Taxation. The Regulations, which prescribe fees for various proceedings and services within the Federal Court of Australia, have been modified to exempt the Commissioner from paying a fee when filing a document relating to the referral of an objection decision to the Court. This amendment ensures that the Commissioner, who may refer an objection decision to the Federal Court at the request of an objector dissatisfied with a taxation decision, does not incur any fees for filing such documents. This change aligns with the Administrative Appeals Tribunal Regulations, which similarly exempt the Commissioner from filing fees in comparable circumstances. The exemption is designed to prevent the double payment of fees that could arise if the Commissioner and the objector were both required to pay fees under different Acts. This amendment applies nationally across Australia, aligning the Federal Court's fee structure with that of the Administrative Appeals Tribunal, thereby providing clarity and consistency in the handling of objection referrals in taxation matters.
Key Provisions
The Federal Court of Australia Regulations (Amendment) 1987 (No. 198) primarily modifies the fees associated with certain proceedings in the Federal Court, particularly those involving tax objection decisions referred to the court by the Commissioner of Taxation (section 60(1) of the Federal Court of Australia Act 1976). Under subregulation 2(2) of the Regulations, the Commissioner of Taxation is now exempt from paying a fee for filing a document relating to the referral of an objection decision to the Court (subregulation 2(2) as amended). This change aligns with the Administrative Appeals Tribunal Regulations, which similarly exempt the Commissioner from filing fees when referring appeals to the tribunal at the request of an objector.
This amendment imposes specific obligations on the Commissioner of Taxation by exempting them from the requirement to pay a filing fee in relation to the referral of objection decisions to the Federal Court. It ensures that the Commissioner does not incur any additional costs for initiating such proceedings, provided the referral is made in response to an objection under the Taxation Administration Act 1953. Conversely, it places the onus on the objector to pay a fee to the Commissioner when requesting the referral, as stipulated in the Taxation Administration Act.
Failure to comply with the provisions of the Regulations could potentially lead to legal complications, particularly concerning double fee liabilities. If the Commissioner were to succeed in an appeal, the objector might otherwise be liable for double fees—one to the Court and one to the Commissioner. This amendment mitigates such a risk by clarifying that the Commissioner should not pay a filing fee in the Court. While the Regulations themselves do not explicitly outline penalties for non-compliance, breaches of associated taxation laws or court procedures could result in penalties or other legal consequences as defined in the respective Acts.