|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Administrative Review Council - Admin Review |
The Administrative Appeals Tribunal may review a decision only if an Act, Regulation or other enactment provides that the decision is subject to review by the tribunal. The enactments listed here came into operation between January 2002 and May 2003 and either conferred, amended or removed the tribunal’s jurisdiction to review certain decisions.
The following enactments confer new jurisdiction on the Administrative Appeals Tribunal:
• Australian Meat and Live-stock Industry (Export of Pregnant Cattle) Order 2002 • Broadcasting Services (Additional Conditions—Open Narrowcasting Radio Services) Notice 2002 • Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Regulations 2002 (No. 1) • Explosives Transport Regulations 2002 • Export Control (Fees) Orders 2001 • Fuel Quality Standards Regulations 2001 • Horticulture Marketing and Research and Development Services (Export Efficiency) Regulations 2002 • Medical Indemnity Act 2002 • New Business Tax System (Imputation) Act 2002 • Proceeds of Crime Act 2002 • Proceeds of Crime Regulations 2002 • Research Involving Human Embryos Act 2002 • Telecommunications Universal Service Obligation (Eligible Revenue) Determination 2002 • Therapeutic Goods (Medical Devices) Regulations 2002 • Venture Capital Act 2002.
The following enactments amend the Administrative Appeals Tribunal’s jurisdiction to review decision subject to review. The right-hand column shows the affected existing enactments.
Amending enactments |
Existing enactments |
• Aboriginal and Torres Strait Islander Commission Amendment Act 2002 |
• Aboriginal and Torres Strait Islander Commission Act 1989 |
• Australian Citizenship Legislation Amendment Act 2002 |
• Australian Citizenship Act 1948 |
• Bankruptcy Legislation Amendment Act 2001 |
• Bankruptcy Act 1966 |
• Civil Aviation Amendment Regulations 2002 (No. 11) |
• Civil Aviation Regulations 1988 |
• Civil Aviation Amendment Regulations 2002 (No. 4) |
• Civil Aviation Regulations 1988 |
• Civil Aviation Amendment Regulations 2002 (No. 7) |
• Civil Aviation Regulations 1988 |
• Classification (Publications, Films and Computer Games) Amendment Act (No. 1) 2001 |
• Classification (Publications, Films and Computer Games) Act 1995 |
• Customs (Prohibited Exports) Amendment Regulations 2002 (No. 2) |
• Higher Education Legislation Amendment Act (Prohibited Exports) Regulations 1958 |
• Customs Legislation Amendment Act (No. 1) 2002 |
• Customs Act 1901 |
• Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 |
• Customs Act 1901 |
• Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Regulations 2002 (No. 1) |
• Defence (Prohibited Words and Letters) Regulations 1957 |
• Disability Discrimination Amendment Act 2002 |
• Disability Discrimination Act 1992 |
• Education Services for Overseas Students Amendment Act 2002 |
• Education Services for Overseas Students Act 2000 |
• Financial Sector (Collection of Data) Act 2001 |
• Life Insurance Act 1995 • Retirement Savings Accounts Act 1997 • Superannuation Industry (Supervision) Act 1993 |
• Financial Sector Legislation Amendment (No. 1) Act 2002 |
• Insurance Act 1973 |
• General Insurance Reform Act 2001 |
• Insurance Act 1973 |
• Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 2) |
• Great Barrier Reef Marine Park Regulations 1938 |
• Great Barrier Reef Marine Park Amendment Regulations 2002 (No. 1) |
• Great Barrier Reef Marine Park Regulations 1938 |
• Health Legislation Amendment (Private Health Industry Measures) Act 2002 |
• Health Insurance Act 1973 |
• Higher Education Legislation Amendment Act (No 2) 2002 |
• Higher Education Funding Act 1988 |
• Higher Education Legislation Amendment Act (No. 3) 2002 |
• Higher Education Funding Act 1988 |
• Marine Order Part 17 (Order No. 5 of 2002) |
• Marine Order Part 17 |
• Marine Order Part 19 (Order No. 2 of 2003) |
• Marine Order Part 19 |
• Marine Order Part 21 (Order No. 7 of 2002) |
• Marine Order Part 21 |
• Marine Order Part 54 (Order No. 11 of 2002) |
• Marine Order Part 54 |
• Marine Orders Part 15 (Order No. 8 of 2002) |
• Marine Order Part 15 |
• Marine Orders Part 27 (Order No. 9 of 2002) |
• Marine Order Part 27 |
• Marine Orders Part 44 (Order No. 4 of 2002) |
• Marine Order Part 44 |
• Marine Orders Part 49 (Order No. 6 of 2002) |
• Marine Order Part 49 |
• Marine Orders Part 58 (Order No. 10 of 2002) |
• Marine Order Part 58 |
• Marine Orders Part 93 (Order No. 12 of 2002) |
• Marine Order Part 93 |
• Marriage Amendment Act 2002 |
• Marriage Act 1961 |
• Migration Legislation Amendment (Migration Agents) Act 2002 |
• Migration Act 1958 |
• Plant Breeder’s Rights Amendment Act 2002 |
• Plant Breeder’s Rights Act 1994 |
• Primary Industries Levies and Charges Collection Amendment Regulations 2002 (No. 2) |
• Primary Industries Levies and Charges Collection Regulations 1991 |
• Retirement Savings Accounts Amendment Regulations 2002 (No. 5) 2002 |
• Retirement Savings Accounts Regulations 1997 |
• Space Activities Amendment Act 2002 |
• Space Activities Act 1998 |
• Space Activities Regulations 2001 |
• Space Activities Amendment Regulations (No. 1) 2003 |
• Taxation Laws Amendment (Film Incentives) Act 2002 |
• Income Tax Assessment Act 1997 |
• Therapeutic Goods (Charges) Amendment Regulations 2002 (No. 2) |
• Therapeutic Goods (Charges) Regulations 1990 |
• Therapeutic Goods Amendment (Medical Devices) Act 2002 |
• Therapeutic Goods Act 1989 |
• Therapeutic Goods Amendment Regulations 2002 (No. 4) |
• Therapeutic Goods Regulations 1990 |
• Veteran’s Affairs Legislation Amendment Act (No. 2) 2002 |
• Veteran’s Entitlements Act 1986 |
The Telecommunications Universal Service Obligation (Eligible Revenue) Determination 2002 removes the Administrative Appeals Tribunal’s jurisdiction under the Telecommunications Universal Service Obligation (Eligible Revenue) Regulations 1998.
In Zoffanies Pty Ltd and Commissioner of Taxation[1] the applicant, Zoffanies Pty Ltd, sought review of a decision by the Taxation Commissioner whereby Zoffanies was refused permission to obtain a tax deduction under the Income Tax Assessment Act 1936. Zoffanies, a subsidiary company of Macquarie Bank Ltd, claimed it was entitled to a deduction of $109 947, which was part of a loss of over $20 million incurred by Macquarie Syndication (No. 3) Pty Ltd. The Macquarie Syndication company, a joint venture established by Macquarie Bank, was involved in transgenic technology to develop leaner, more food efficient pigs for consumption.
Some of the questions posed by the case were whether under the Income Tax Assessment Act the dealings were at arm’s length; if not, whether the amount of Macquarie Bank’s expenditure on the technology licence would have been less had the dealing been at arm’s length; and whether a reasonable person would conclude that the person who entered into the scheme did so for the purpose of enabling the relevant taxpayer to obtain a tax benefit.
The Administrative Appeals Tribunal held that whether the parties’ dealings were at arm’s length ‘is a question of fact in each case as to whether the parties acted independently and applied their separate minds and wills in forming a bargain’.[2] Cooperation and persuasion do not, by themselves, demonstrate that the parties did not apply their separate minds when bargaining.
The tribunal heard evidence from the initial valuer of the technology licence and from five expert witnesses, who all, using different valuation methodologies, arrived at different valuations for the technology. The tribunal noted that, in the case of new technology, ‘where there is no clear market or income stream, no valuation can do more than estimate a range within which a particular valuation may reasonably lie’.[3] It determined that, when an estimation of value has been given by a valuer, the tribunal should be cautious about substituting one valuer’s opinion for another without good reason.
On the facts, the tribunal found that the initial valuer acted independently and in good faith. He was sufficiently qualified to make the valuation, and another competent valuer might have made a similar valuation at the time the initial valuation was made.
The tribunal held that, when determining whether it could reasonably be concluded that a person entered into a scheme for the purpose of enabling the relevant taxpayer to obtain a tax benefit, the proper test to be used was whether the predominant purpose for entering into the scheme was tax avoidance. This was in accordance with previous case law.
On the facts, the tribunal concluded that representatives of Macquarie Syndication were actively involved in the scheme through chairing committees, regularly attending meetings, engaging consultants, and preparing detailed progress reports. This behaviour suggested that a reasonable person would conclude that the dominant reason for the applicant entering into the scheme was for investment purposes.
The outcome of the case was that the tribunal set aside the Tax Commissioner’s initial decision and substituted its own decision, permitting the applicant to obtain a tax deduction.
The Compensation (Japanese Internment) Act 2001 provides for a one-off payment of $25 000 to widows and widowers of prisoners of war and civilians interned by Japan during World War 2. In Harvey and Repatriation Commission[4] the applicant sought the payment on the basis that her husband had been interned in Singapore. Her husband had been a civilian living in Singapore at the time of the Japanese invasion, and she was unsure of what had happened to him. It appeared that he had been evacuated from Singapore in the days before the surrender. The tribunal found that this assumption was supported by a death certificate.
The applicant said, however, that an Australian nurse who had been captured told her that she (the nurse) had been sitting on a beach with fellow captives and had noticed a group of Australian servicemen. They were very dirty, but the nurse nonetheless claimed she had seen the applicant’s husband. Japanese soldiers subsequently led the servicemen away and murdered them.
The tribunal held that the definition of ‘interned’ in the Act was to be interpreted widely to cover a person who was held captive for a very short period. It noted that the legislation did not create a presumption of internment and that it is necessary for the decision maker to be satisfied in each case that the individual in question has been interned. The tribunal determined, however, that in this case there was insufficient evidence to support the applicant’s claim that her husband had been captured by the Japanese.
The Aboriginal and Torres Strait Islander Commission Act 1989 establishes regional councils, and Tasmania is one of the regions where a regional council is elected. Under the Act a person can vote in a regional council election only if they are an ‘Aboriginal person or a Torres Strait Islander’. ‘Aboriginal person’ is defined as ‘a person of the Aboriginal race of Australia’.
Bruce William Patmore and Others v. Independent Indigenous Advisory Committee[5] involved the compilation of an Indigenous electors roll. Rule 148 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 provided that an Australian citizen who was at least 18 years of age and who held an honest belief that an applicant was not an Indigenous person was entitled to lodge an objection with the Independent Indigenous Advisory Committee, which could take the applicant off the electors roll if submissions and information provided by the applicant failed to satisfy it that the applicant was an Indigenous person.
An Indigenous person was defined to mean an ‘Aboriginal person or a Torres Strait Islander’. The committee made decisions not to include an applicant on the electors roll on the basis that there was insufficient evidence demonstrating that they were an ‘Aboriginal person’.
The question before the tribunal was whether each of the applicants was an Aboriginal person—that is, a person of the Aboriginal race of Australia. The tribunal affirmed Justice Deane’s view in the Tasmanian Dam Case, that an Aboriginal person is a person where three characteristics are present: Aboriginal descent; self-identification as an Aborigine; and recognition as an Aborigine by the Aboriginal community.
The tribunal noted that a person with a parent who is a full-blood Aborigine will need to show little or no self-identification or community acceptance, whereas a person with a remote line of Indigenous descent will ordinarily need to demonstrate real self-identification as an Aborigine and substantial community recognition.[6] The tribunal acknowledged the difficulty in demonstrating Aboriginal descent but noted that it can be done through records of births, deaths and marriages as well as family history and tradition.[7] It also assumed that ‘self-identification and community recognition of applicants as Aborigines, particularly where there is evidence of a family history or tradition of Aboriginal descent passed on orally, can provide evidence of Aboriginal descent’.[8]
The tribunal held that the committee placed too much weight on public records showing Aboriginal descent, rather than recognising that the absence of archival evidence of Aboriginal descent is not always conclusive. Consequently, it substituted its own decision for that of the committee, finding that nearly all the applicants who sought review should be added to the electors roll as ‘Aboriginal persons’.
The Australian Communications Authority is empowered to issue apparatus licences under the Radiocommunications Act 1992. Such a licence permits the holder to operate radiocommunications devices.
In GB Radio Australia P/L and Australian Communications Authority and Anor[9] a joined party, a director of GB Radio, held licences in his own name. He then sought to transfer them to the company (GB Radio) without using the proper transfer form. The Australian Communications Authority gave effect to the transfer, waiving the usual fee and altering the licence register to show that the company held the licences. The joined party subsequently approached the ACA, asking that the licences be returned to his name on the basis that an effective transfer had not occurred because he had not completed the proper transfer form. The ACA accordingly changed the names on the register, showing the joined party as the holder of the licences. The company requested that its name be restored to the register but the ACA denied this request.
The question for the tribunal was whether the joined party’s name should remain on the register or whether the company’s name should be restored to the register, identifying it as the rightful holder of the licences. The tribunal held that, even if the ACA had breached a statutory condition by approving the transfer of licences to the company when the proper transfer form had not been used, the ACA’s decision to approve the transfer was valid. The change of the register on the basis that there had not been a valid transfer thus amounted to an unlawful termination of the company’s licences. As a result, the ACA should have acceded to the company’s request to restore its name to the register.
The reasoning of the tribunal was that ss. 131AA and 131AB of the Radiocommunications Act do not reveal a legislative purpose to invalidate transfers effected without use of the proper form. The act of transfer under the legislation was an act of the ACA, not of the parties. If the ACA decides to make effective an application that is not in the usual form there is no legislative policy that suggests the transfer is invalid. Similarly, there was no legislative purpose to invalidate the transfer on the basis that the ACA waived the usual fee. The tribunal therefore set aside the decision to reinstate the joined party as the licensee and the decision not to adjust the register to reinstate the company as the licence holder.
The tribunal made a decision to reinstate the company as the licence holder.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AdminRw/2003/5.html