EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 123
ISSUED BY THE AUTHORITY OF THE TREASURER
INCOME TAX REGULATIONS (AMENDMENT)
These regulations amended the Income Tax Regulations to repeal a number of redundant regulations, and made changes of a minor nature to update the drafting style of others.
Notes on each of the amending regulations are set out below:
By Regulation 1 the repeal of regulation 61 of the Income Tax Regulations, takes effect on 1 July 1989. Amendments consequential to the repeal also take effect on this date.
Regulation 2 facilitates references to the Income Tax Regulations which, in the amending regulations, are referred to as the “Principal Regulations”.
Regulation 3 amended subregulation 3(1) of the Principal Regulations by omitting the definition of “prescribed delegate of the Commissioner”. This amendment was consequential upon the repeal of regulation 61 of the Principal Regulations by regulation 6.
Regulation 4 amended regulation 4AC of the Principal Regulations. Regulation 4AC prescribed “special Commonwealth Police Officers” appointed in pursuance of section 10 of the Commonwealth Police Act 1957, who were members of the peace keeping force in Cyprus, to be a class of persons to which section 23AB of the Income Tax Assessment Act 1936 (the Act) applied. Section 23AB facilitates a concessional tax treatment of the income of certain persons serving with an armed force under the control of the United Nations.
The amendment is of a formal nature, and reflects the fact that those sent to Cyprus are no longer appointed as “special” members of the Commonwealth Police. Further, the body once known as the Commonwealth Police no longer exists, as the Commonwealth Police Act 1957 has been replaced by the Australian Federal Police Act 1979. Those sent to Cyprus are ordinary, as opposed to “special” members of the Australian Federal Police.
The regulation was not otherwise altered.
Regulation 5 repealed regulation 4AD of the Principal Regulations. Regulation 4AD specified, by reason of a state of disturbance in or affecting Vietnam (Southern Zone), the territory of Vietnam (Southern Zone), to be a “special area” for the purposes of section 23AC of the Act. This allowed Defence Force Personnel serving in that “special area” to have their pay and allowances exempt from tax during the period of “special service”. Generally, the “special service” of a member of the Defence Force was taken to be the period during which they were allotted for duty in a “special area”.
As the purpose for which Vietnam (Southern Zone) was originally prescribed as a “special area” no longer exists - and ceased to exist some years ago - it was appropriate that regulation 4AD be repealed.
A location or area to which the term “special area” applied was specified in the Sixth Schedule to the Principal Regulations. The area corresponded exactly with the area of Vietnam (Southern Zone) described in Column 1 of Schedule 2 of the Veterans’ Entitlements Act 1986, which was an “operational area” for the purposes of that Act. Under that Act, Vietnam (Southern Zone) ceased to be an operational area on 11 January 1973.
The repeal of regulation 4AD therefore deprived no-one of the tax concession formerly available.
Regulation 6 repealed regulation 61 of the Principal Regulations. That regulation allowed the Commissioner, by notice published in the Gazette, to appoint any person to be a “prescribed delegate of the Commissioner” for the purposes of the Income Tax Regulations.
The Commissioner had not recently used the regulation, as his powers are delegated other than by notice in the Gazette. Therefore, for practical purposes, the regulation did not operate, and was repealed with effect after 30 June 1989.
Regulation 7 repealed regulation 66 of the Principal Regulations. The regulation provided for the payment of a fee to the Department of Health. Payment was made on application for a certificate of invalidity for the purposes of section 159J of the the Act. Among other things, section 159J provides a rebate to taxpayers who maintain invalid relatives over the age of 16 years.
The regulation was no longer appropriate because the reference to the Department of Health was technically obsolete due to the regrouping of Departments in 1987, and it was out of date; the fee - $2.10 or $2.50 depending on where the relevant medical examination was carried out - had not been raised since at least 1975, nor charged since the introduction of Medicare in 1983.
Regulation 8 repealed the Sixth Schedule to the Principal Regulations. The Sixth Schedule described the area of Vietnam (Southern Zone) and its contiguous waters that were a “special area” for the purposes of section 23AC of the Act. Its repeal was consequential upon the repeal of regulation 4AD.
By subregulations 9(1) and (2), the regulations specified in Schedules 1 and 2, respectively, to the amending regulations, were amended as set out in those Schedules. Notes on amendments made by the Schedules appear at the end of this Statement.
Subregulation 10(1) is a savings provision that ensured that the validity of any exercises of delegations made under regulation 61 of the Principal Regulations is preserved, even though the enabling provision (regulation 61) had been repealed with effect after 30 June 1989. The savings provision will also clarify any uncertainty which may arise in this regard. This broad purpose will be achieved because subregulation 10(1) -
(a) ensured that, where an act done, step taken or decision made under the Principal Regulations by, or on behalf of, a prescribed delegate of the Commissioner was in effect immediately before 1 July 1989, it continued to have effect after that date; and
(b) provided for regulation 62 of the Principal Regulations, which concerns presumption as to signatures (for example, for judicial notice) to continue to apply as in force immediately before 1 July 1989.
Subregulation 10(2) confined the meaning of the expression “prescribed delegate of the Commissioner” (used in subregulation (1)) to a person appointed to be a prescribed delegate of the Commissioner for the purposes of the Income Tax Regulations as in force before 1 July 1989. The expression could not apply to other delegates because the repeal of regulation 61 ensured that there will be none.
Schedule 1
The amendments in Schedule 1 reflected changes of a minor nature, to ensure that the drafting of the regulations which are specified in the Schedule was expressed in modern style. The specified regulations were not otherwise altered.
Schedule 2
The amendments in Schedule 2 were formal amendments consequential upon the repeal of regulation 61 of the Principal Regulations.