Foreign States Immunities Regulations (Amendment) 1993 No. 243
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 243
Issued by the authority of the Attorney-General
Foreign States Immunities Act 1985
Foreign States Immunities Regulations (Amendment)
Section 43 of the Foreign States Immunities Act 1985 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 20 of the Act provides that a foreign State is not immune in a proceeding in so far as the proceeding concerns an obligation imposed on it by or under a provision of a law of Australia with respect to taxation, being a provision that is prescribed for the purposes of section 20 of the Act.
The prescribing of legislation for the purposes of section 20 of the Act does not affect the substantive liability of a foreign State to pay particular taxes. It merely enables a foreign State to be sued in an Australian court in order to recover a tax for which it is liable.
The Schedule to the Foreign States Immunities Regulations currently lists provisions of the laws of Australia with regard to taxation which are prescribed for the purposes of section 20 of the Act These laws include the Sales Tax Assessment Acts (Nos. 1-9) 1930 and the Sales Tax Assessment Acts (Nos. 10-11) 1985. As a result of recent changes to the sales tax laws, the Australian Taxation Office has requested that the Schedule be amended so as to include the Sales Tax Assessment Act 1992.
The attached Regulations add the Sales Tax Assessment Act 1992 to the list of Acts contained in the Schedule. This will enable tax to be recovered with respect to dealings with goods that occurred on or after 1 January 1993. The Regulations do not, however, create any retrospective liability but merely introduce a mechanism for recovery.
The amendments leave unaltered the references in the Schedule to the Sales Tax Assessment Acts (Nos. 1-9) 1930 and the Sales Tax Assessment Acts (Nos. 10-11) 1985 as some recovery action may still be occurring under the earlier legislation. The amendments will have no effect on the legislation previously prescribed in Parts II - X of the Schedule which concern, specifically, the States, the Northern Territory, the Australian Capital Territory and Norfolk Island.
Overview
The Foreign States Immunities Regulations (Amendment) 1993 No. 243 was enacted to address a gap in the Foreign States Immunities Act 1985 by updating the list of Australian taxation laws prescribed for the purposes of section 20 of the Act. This Act, enacted by the Parliament of Australia, aims to provide a mechanism for recovering taxes owed by foreign states in Australian courts. The amendment to the regulations was prompted by a request from the Australian Taxation Office to include the Sales Tax Assessment Act 1992 in the Schedule, enabling the recovery of tax for dealings with goods occurring on or after 1 January 1993. This update ensures the regulatory framework remains current with legislative changes, facilitating the enforcement of tax obligations while maintaining the integrity of the existing legislative references for ongoing recovery actions under earlier sales tax laws.
Scope and Application
The Foreign States Immunities Regulations (Amendment) 1993 No. 243 applies to foreign states and their assets within the jurisdiction of Australia. It amends the existing Foreign States Immunities Regulations to update the list of prescribed Australian tax laws for the purposes of section 20 of the Foreign States Immunities Act 1985, which provides for the immunity of foreign states in certain legal proceedings. Specifically, the amendment adds the Sales Tax Assessment Act 1992 to the list of acts contained in the Schedule, thereby enabling tax to be recovered in relation to transactions involving goods from 1 January 1993 onwards. The changes are prospective only, ensuring that no retrospective liabilities are created, and do not affect the existing references to earlier sales tax legislation, allowing ongoing recovery actions under those laws. The amendment is geographically applicable across Australia, including the states, the Northern Territory, the Australian Capital Territory, and Norfolk Island, while maintaining the existing jurisdictional framework for foreign state immunity.
Key Provisions
The Foreign States Immunities Regulations (Amendment) 1993 No. 243 primarily concern the updating of the list of Australian tax laws that are prescribed for the purposes of section 20 of the Foreign States Immunities Act 1985 (the Act). Section 20 of the Act specifies that a foreign State is not immune from legal proceedings in Australia in relation to certain tax obligations imposed by Australian law. The Regulations, under section 43 of the Act, amend the Schedule by adding the Sales Tax Assessment Act 1992 to the list of prescribed tax laws. This amendment ensures that foreign States can be sued in Australian courts for taxes owed under the new Act, which applies to sales tax on goods occurring from 1 January 1993 onwards. Importantly, the Regulations do not impose any retrospective liability but simply provide a legal mechanism for recovering taxes under the 1992 Act.
The obligations imposed by these Regulations on the relevant parties and entities primarily revolve around the enforcement of tax liabilities under the Sales Tax Assessment Act 1992. The addition of this Act to the Schedule under section 20 of the Act means that foreign States now have a prescribed legal pathway through which Australian courts can be approached to enforce tax payments. This mechanism ensures that foreign States are not immune from legal action concerning tax obligations imposed by Australian tax laws, specifically those outlined in the Sales Tax Assessment Act 1992. The amendments ensure that these obligations are clearly defined and that the legal process for enforcement is transparent and consistent with the provisions of the Act.
In terms of breaches and consequences, the Foreign States Immunities Regulations (Amendment) 1993 No. 243 do not introduce new offences or penalties. Instead, they provide a legal framework for enforcing existing tax liabilities under the Sales Tax Assessment Act 1992. The penalties and consequences for non-compliance with tax obligations remain those specified under the Sales Tax Assessment Act 1992 and other relevant Australian tax laws. The primary consequence of failing to comply with these tax obligations is the potential for legal action in an Australian court, which may result in the enforcement of tax payments and associated interest or fines as prescribed by the relevant tax legislation. The Regulations themselves do not stipulate maximum penalties but rather ensure that the legal framework for tax recovery remains intact and up-to-date with current tax laws.