University of Canberra Regulations 1993 No. 244
EXPLANATORY STATEMENT
Statutory Rules 1993 No. 244
Issued by the Authority of the Minister for Employment, Education and Training
University of Canberra Act 1989
University of Canberra Regulations
Subsection 38(1) of the University of Canberra Act 1989 (the Act) provides for the University of Canberra (the University) to be generally exempt from taxation laws of the Commonwealth or of a State or Territory. However, subsection 38(3) gives the Governor-General power to make regulations providing that this general exemption does not apply in relation to taxation under a specified law.
The Act established the University from 1 January 1990. The University is the successor in law to the former Canberra College of Advanced Education (the College). It was intended that the Act would continue the College's liability for the payment of payroll tax. To this end, section 47 of the Act continues the effect of any College instrument after the commencement of the University and subsection 46(1) provides for the assets and liabilities of the College to become the assets and liabilities of the University.
However, recent legal advice, confirmed by the Office of General Counsel, Attorney-General's Department, has indicated that, in the absence of specific regulations made by the Governor-General under subsection 38(3) of the Act, the University is not liable to the payment of tax under the Payroll Tax Act 1987 of the Australian Capital Territory. The University has paid payroll tax since its inception.
The University of Canberra Regulations make the University liable to the payment of payroll tax under the Payroll Tax Act 2987 of the Australian Capital Territory with effect from 1 January 1990.
Subsection 48(2) if the Acts Interpretation Act 1901 states that regulations should not have retrospective effect if the rights of a person (other than the Commonwealth or an authority of the Commonwealth) would be prejudiced or liabilities would be imposed before the date of notification. The Office of General Counsel, Attorney-General's Department, has advised that, although the University is granted considerable autonomy in carrying out its functions, the Commonwealth retains significant powers in relation to those functions. The University is created as an instrument of government and established as a body with the purpose of providing higher education and associated pursuits, services and facilities in the Australian Capital Territory. This purpose may rightly be viewed as governmental and the University as an authority of the Commonwealth. The commencement date of 1 January 1990 for the University of Canberra Regulations is not, therefore, in contravention of subsection 48(2) of the Acts Interpretation Act 1901.
Overview
The University of Canberra Regulations 1993 were enacted to address a legal gap identified in the University of Canberra Act 1989, which initially exempted the University from certain taxation laws. Specifically, the regulations aim to ensure the University's liability for payroll tax under the Payroll Tax Act 1987 of the Australian Capital Territory, a liability that was not explicitly covered by the original Act. This was necessitated by legal advice indicating that the University was not liable for payroll tax unless specific regulations were enacted by the Governor-General under subsection 38(3) of the 1989 Act. The regulations were issued by the Minister for Employment, Education and Training, and they align with the policy objective of maintaining the University's financial obligations as intended by its establishment. The regulations take effect from 1 January 1990, consistent with the commencement of the University of Canberra Act, and are not considered to have retrospective effect under subsection 48(2) of the Acts Interpretation Act 1901, as the University's role is viewed as governmental.
Scope and Application
The University of Canberra Regulations 1993, made under the University of Canberra Act 1989, aim to address the University’s liability for payroll tax in the Australian Capital Territory. These regulations apply to the University of Canberra, which succeeded the former Canberra College of Advanced Education, ensuring that the University assumes the former institution’s liabilities, including tax obligations, upon its establishment from 1 January 1990. The University of Canberra Regulations impose a specific obligation on the University to pay payroll tax under the Payroll Tax Act 1987 of the Australian Capital Territory, clarifying its tax liability that would otherwise not apply due to its general exemption from taxation laws under subsection 38(1) of the Act. The commencement of these regulations on 1 January 1990 aligns with the University's establishment date and does not contravene the non-retrospective effect principle of the Acts Interpretation Act 1901, as the University is considered an authority of the Commonwealth with governmental functions.
Key Provisions
The University of Canberra Regulations 1993 No. 244, made under the University of Canberra Act 1989, address the University's tax liabilities, particularly concerning payroll tax. The primary operative sections in these regulations are Sections 1 and 3. Section 1 outlines the commencement date of the regulations, which is effective from 1 January 1990, aligning with the establishment date of the University of Canberra. Section 3 explicitly states that the University is liable to pay payroll tax under the Payroll Tax Act 1987 of the Australian Capital Territory.
These regulations impose specific obligations on the University of Canberra, ensuring that it adheres to the tax laws of the Australian Capital Territory. As per Section 1, the University must now account for payroll tax, which it has not been legally required to do since its inception unless these regulations are enacted. Section 3 clarifies that this tax liability applies retroactively from the date the University was established, thereby making it accountable for any unpaid payroll tax from 1 January 1990 onwards.
There are no explicit offences, penalties, or civil/criminal consequences mentioned within the regulations themselves. However, failure to comply with the payroll tax obligations as stipulated by these regulations could result in potential legal and financial repercussions under the Payroll Tax Act 1987. The consequences of non-compliance could include fines or other penalties as prescribed by that Act, which may vary based on the specifics of the non-compliance and the discretion of the relevant tax authority. The exact penalties would be determined by the Australian Capital Territory's tax legislation, which is not detailed within these specific regulations.