TAXATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 321

Commonwealth Numbered Regulations - Explanatory Statements

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TAXATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 321

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 321

Issued by authority of the Assistant Treasurer

Fringe Benefits Tax Assessment Act 1986

Income Tax Assessment Act 1997

Superannuation Guarantee (Administration) Act 1992

Taxation Administration Act 1953

Tobacco Charges Assessment Act 1955

Wool Tax (Administration) Act 1964

Taxation Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1)

The Governor-General has the authority to make regulations for the above Acts by virtue of the following provisions: section 135 of the Fringe Benefits Tax Assessment Act 1986; section 909-1 of the Income Tax Assessment Act 1997; section 80 of the Superannuation Guarantee (Administration) Act 1992; section 18 of the Taxation Administration Act 1953; section 42 of the Tobacco Charges Assessment Act 1955; and section 93 of the Wool Tax (Administration) Act 1964.

The main purpose of the amendment Regulations is to ensure that offence creating provisions in existing Regulations continue to operate in the same manner, following the application of the Criminal Code ('the Code') to all Commonwealth legislation from 15 December 2001.

The Code was enacted in the Criminal Code Act 1995. It will provide a consistent framework for the interpretation of all criminal offence provisions. The Code commenced to apply to new offences from 1 January 1997, however to give Departments and agencies sufficient time to review existing legislation, the Code will not apply to existing offence provisions until 15 December 2000.

The Regulations amend the Fringe Benefits Tax Regulations 1992, the Income Tax Assessment Regulations 1997, the Superannuation Guarantee (Administration) Regulations 1993, the Taxation Administration Regulations 1976, the Tobacco Charges Regulations 1958, and the Wool Tax (Administration) Regulations 1964 to ensure that existing offences of strict liability remain so after the introduction of the Code, to clarify defences that are available, and to clarify the fault elements of the offences.

The amendment Regulations commence on 15 December 2001.

A detailed explanation of the amendments to the Regulations is attached (Attachment A).

ATTACHMENT A

Regulation 1

Regulation 1 provides that the name of these Regulations is the Taxation Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1).

Regulation 2

Regulation 2 provides that these Regulations commence on 15 December 2001.

Regulations 3 - 8

Regulations 3 - 8 provide that each Schedule to these Regulations amends particular Regulations. Schedule 1 amends the Fringe Benefits Tax Regulations 1992, Schedule 2 amends the Income Tax Assessment Regulations 1997, Schedule 3 amends the Superannuation Guarantee (Administration) Regulations 1993, Schedule 4 amends the Taxation Administration Regulations 1976, Schedule 5 amends the Tobacco Charges Regulations 1958, and Schedule 6 amends the Wool Tax (Administration) Regulations 1964.

Schedule 1 - Amendments to the Fringe Benefits Tax Regulations 1992

Subregulation 19(5)

Subregulation 19(6) has been inserted to provide that the offence in Subregulation 19(5) is an offence of strict liability.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Criminal Code (the Code) is available. Strict liability is described in section 6.1 of the Code.

The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

Subregulation 19(5) creates an offence relating to employers providing a preferred address for service. This is currently an offence of strict liability, and this amendment ensures that it will continue to be so following the application of the Code.

Schedule 2 - Amendments to the Income Tax Assessment Regulations 1997

Subregulations 61-330.01(3) and (6)

Subregulations 61-330.01(3A) and 61-330.01(7) have been inserted to provide that the offences in Subregulations 61-330.01(3) and 61-330.01(6) are strict liability offences.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

Subregulation 61-330.01 (3) requires a health fund to provide a written statement to each member for each income year. Subregulation 61-330.01(6) requires the health fund to take reasonable care in preparing the statements. These are currently offences of strict liability, and these amendments ensure that they will continue to be so following the application of the Code.

Schedule 3 - Amendments to the Superannuation Guarantee (Administration) Regulations 1993

Subregulations 10B(2), (3) and (4)

Subregulations 10B(2A), 10B(3A) and 10B(5) have been inserted to provide that the offences in Subregulations 10B (2), (3) and (4) are offences of strict liability.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

These regulations deal with the requirements of officers of superannuation funds to give notice following requests by employees. These are currently offences of strict liability, and these amendments ensure that they will continue to be so following the application of the Code.

Schedule 4 - Amendments to the Taxation Administration Regulations 1976

Subregulation 10(1)

Subregulation 10(2) has been inserted to provide that the offence in Subregulation 10(1) is an offence of strict liability.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

Subregulation 10(1) requires a person applying for a tax clearance certificate to provide an address for service. This is currently an offence of strict liability, and this amendment ensures that it will continue to be so following the application of the Code.

Schedule 5 - Amendments to the Tobacco Charges Regulations 1958

Subregulations 19(8) and (9)

The offences in Subregulations 19(8) and 19(9) have been restructured to clarify elements of the offences, and reworded using simpler language. These changes do not change the operation or the effect of the offence provisions. As a result of this . rewording, the offences that were contained in Subregulations 19(8) and 19(9) are now contained in 3 Subregulations, 19(8), 19(9) and 19(10).

Subregulation 19(11) has been inserted to provide that the offences in Subregulations 19(8), (9) and (10) are offences of strict liability.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

Subregulations 19(8) and (9) deal with offences relating to the signing of documents required by the Regulations. These are currently offences of strict liability, and this amendment ensures that they will continue to be so following the application of the Code.

Subregulations 19(8) and (9) also contained a defence within the offence provisions. This can cause confusion about what the defence actually is, and what burden of proof the defendant bears in relation to it. The defence of "except in accordance with these Regulations (proof of which accordance lies upon the person charged)" has been removed, and placed in Subregulation 19(12). This defence applies to the offences in new Subregulations 19(8), 19(9) and 19(10). The note to Subregulation 19(12) clarifies that the defendant continues to bear a legal burden in relation to this offence, which was previously expressed by the requirement that "proof of which accordance lies upon the person charged".

Schedule 6 - Amendments to the Wool Tax (Administration) Regulations 1964

Subregulation 7A(2)

The wording of Subregulation 7A(2) provided inappropriate fault elements for the physical element of conduct specified in the offence. The Code does not provide for the fault elements of 'knowingly' and 'recklessly' to apply to the. physical element of conduct.

The offence provided that:

"an intermediary must not knowingly or recklessly give false particulars to the Commissioner."

The offence has been reworded to clarify that the fault element of recklessly applies to the fact that the particulars are false. It is no longer necessary to specify knowingly as a fault element of this offence, as subsection 5.4(4) of the Code provides that where recklessness is a fault element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

Regulation 24

Regulation 24 has been omitted. This Regulation dealt with complying with a requirement or answering a question of a Board of Review. A Board of Review under the Wool Tax (Administration) Act 1964 means a Board of Review constituted under the Income Tax and Social Services Contribution Assessment Act 1936-1963. The Board of Review no longer exists.

Subregulation 39(1)

Subregulation 39(1A) has been inserted to provide that the offence in Subregulation 39(1) is an offence of strict liability.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

Subregulation 39(1) requires a person who furnishes a return to give an address in Australia for service. This is currently an offence of strict liability, and this amendment ensures that it will continue to be so following the application of the Code.