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1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF
AUSTRALIA
SENATE
AIR
PASSENGER TICKET LEVY (COLLECTION) BILL
2001
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of
the Minister for Transport and Regional Services,
the Honourable John
Anderson, MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE
OF REPRESENTATIVES TO THE BILL AS INTRODUCED
AIR PASSENGER TICKET LEVY (COLLECTION) BILL 2001
The purpose of the Bill is to collect a passenger ticket levy on all
flights that originate in Australia and which have been delivered to passengers
in Australia. The proceeds of this levy will fund a scheme for the payment of
entitlements to the former employees of companies in the Ansett group following
the insolvency of Ansett Airlines and a number of its subsidiaries.
The
Bill assigns liability for payment of the levy to the purchasers of the tickets
although the ticketing airline will be responsible for the collection of levy
payable by purchasers. It establishes a process for levy collection, including
provision for the lodgement of levy returns, penalty payments and the
distribution of any surplus levy. It also is provides for the appointment of
inspectors to carry out functions relating to the levy collection.
Under
the accompanying Air Passenger Ticket Levy (Imposition) Bill 2001, the
levy is imposed at a rate of $10 per ticket.
The Bill allows the Minister
to enter into special arrangements for the payment of levy by operators.
The levy collected will fund the expenditure authorised under the Bill.
The amount of levy collected annually will depend on the rate of levy and the
number of tickets issued. Nonetheless, the maximum amount of expenditure that
is authorised under the Bill is $500 million. Over its life the legislation
will be cost neutral.
AIR PASSENGER TICKET LEVY (COLLECTION) BILL 2001
The short title of the Act is to be the Air Passenger Ticket Levy
(Collection) Act 2001.
The Act will commence, or is taken to have commenced, on 1 October
2001.
Under this clause, the Crown in right of each State and the Commonwealth
will be bound by the Act but the Crown will not be liable to be prosecuted in
respect of any offence under the Act.
This clause provides that Chapter 2 of the Criminal Code applies
to offences against this Act. Chapter 2 of the Criminal Code provides
for general principles of criminal responsibility.
This clause sets out a number of definitions used in the Bill. In
particular:
Air passenger ticket means a ticket or
electronic record, which allows a person to travel as a passenger on a
particular flight or flights
Australian flight means a
flight that takes off from a place in Australia whether the flight is to another
place in Australia or a place outside Australia (ie irrespective of its
destination).
Operator of a flight by an aircraft means the
person who conducts, or offers to conduct, an air service by use of the aircraft
for that flight. This definition covers both flights conducted by an operator
in their own right and code-share arrangements where the flight operator has
sold a ticket on a flight conducted by another operator.
For the purposes of the Act, the following are to be treated as one air
passenger ticket:
• an air passenger ticket that covers flights provided by two or more operators (ie this is not treated as a separate air passenger ticket for each of those operators)
• where two or more air passenger tickets meet the circumstances provided for in the regulations.
Regulations may also prescribe circumstances under which what would
otherwise be one air passenger ticket is to be treated as 2 or more air
passenger tickets for purposes of the collection of the levy.
The purpose of the levy is to meet the costs associated with the Special
Employee Entitlements Scheme for Ansett group employees.
The Act will apply to all of Australia's external Territories.
This clause imposes a levy on any air passenger ticket purchased for a
relevant flight on or after 1 October 2001, and before the end of the final levy
month.
The levy is not payable on paper tickets for which a passenger
takes possession outside of Australia. This is intended to minimise the impact
of the levy on international inbound tourism.
The regulations may also
provide for exemptions. In some circumstances, a ticket needs to be issued or
electronic record made however no fare is paid, eg transport of airline crew and
personnel.
This clause imposes the levy liability on the person who purchases the
ticket (rather than the person who uses the ticket for the relevant
flight).
This clause provides that an operator who issues a ticket must collect
the levy payable unless they have made adequate arrangements for the collection
of the levy, eg a travel agent may collect the levy when the ticket is
purchased.
Subclause 11(2) provides an exception in that where
operators issue separate tickets in conjunction with each other (ie for one
journey) only the operators of the first relevant flight is required to collect
the levy.
Subclause 11(3) provides that the person who receives the levy
from a purchaser must remit the payment to the Commonwealth by the due
date unless the purchaser is entitled to a refund or the levy is applied
to the purchase of another ticket.
Failure to comply with either of these
requirements is an offence that attracts a maximum penalty of one penalty
unit.[1] Note that this penalty
applies for every payment that the operator or agent fails to collect, remit or
refund.
The Minister may, by publishing a notice in the Gazette, notify a
month as the final levy month after which no levy will be payable. This notice
is irrevocable. No liability to pay levy can arise after the final levy
month.
This clause allows the Minister to make an arrangement with an operator
of relevant flights for the payment of levy to the Commonwealth. In deciding
whether to make such an arrangement, the Minister must have regard to relevant
matters, including, the desirability of mitigating, or limiting, any distortions
that the operator’s ticketing arrangements would otherwise cause in the
incidence of the levy on tickets issued by the operator (compared to tickets
issued by other operators). The purchaser is taken to have paid the levy when
he or she purchases a ticket covered by the arrangement. Levy payable under the
arrangement is recoverable by the Commonwealth by action in a court of competent
jurisdiction.
This clause requires an operator to lodge a monthly return on tickets
issued for relevant flights. The return is to be lodged by the last day of the
month following the month in which the tickets are purchased.
This clause makes the levy payable on purchase of the ticket.
This clause contains provisions to facilitate the recovery by the
Commonwealth of unpaid levy. The Commonwealth can recover unpaid levy as a debt
due to it. In addition, a statement or averment by person on behalf of the
Commonwealth, who seeks to recover unpaid levy, will be regarded as prima facie
evidence of the matters stated or averred.
This clause makes provision for the refund of the levy to the
purchaser:
• if the levy is overpaid,
• if the ticket is cancelled; and
• if the ticket is not used for any relevant flight.
Under this clause an authorised officer may require a person to give him
or her specified information on the receipts of levy amounts, the payment of
these amounts on behalf of the purchasers to the Commonwealth, any special
arrangement made under clause 12A and other information related to the
collection of the levy. The notice must be in writing and may require a
statutory declaration to verify the information.
An authorised officer
may be the Secretary, an employee of the Department or a person belonging to a
Commonwealth authority.
Subclause (1) provides for the functions of an inspector in relation to
'levy-related' documents.[2]
Subclause (2) provides that an inspector may have access to premises, with the
consent of the occupier, for the purposes of exercising those functions. Under
subclause (3), an inspector may apply to a Magistrate for a warrant authorising
the inspector to search premises. Subclause (4) authorises the Magistrate to
issue a search warrant to the inspector if he or she is satisfied that there are
reasonable grounds, and that the warrant is reasonably required. Subclause (5)
empowers the inspector to exercise his or her functions upon entering premises.
It is an offence under subclause (6) for a person to obstruct or hinder an
inspector.
The Secretary may appoint inspectors who must be a person employed by the
Commonwealth, a State or Territory. The inspector must comply with any
directions of the Secretary when exercising powers or performing functions under
the Act. The Secretary must issue all inspectors with identity cards and these
must be carried at all times when an inspector is exercising powers or
performing functions under this Part.
Under subclause (1) failure to lodge a return under clause 13 will be an
offence. It also an offence to fail to provide information under the Act or
regulations. These are both offences of strict liability, however, they do not
apply if the person has a reasonable excuse. In addition, a person is not
excused from giving information on the ground that self-incriminating, however
that information is not admissible in criminal proceedings other than those
offence proceedings under subclause (1).
The Minister or the Secretary will be able to delegate any or all of
their powers under the Act to a person holding or performing the duties of a
Senior Executive Service employee in the Department. The delegate must comply
with any directions from the Minister or the Secretary (as the case may be) in
the exercise of those powers or functions.
The Workplace Relations Minister will be able to determine a Scheme for
the payment of certain entitlements to the former employees of companies in the
Ansett group following the insolvency of Ansett Airlines and a number of its
subsidiaries.
The determination may specify the companies and
entitlements covered by the Scheme and the terms on which payments are
made.
The Workplace Relations Minister may authorise payments in
connection with the Scheme, including payments:
• to an entity so that it can repay money it has borrowed to cover payments under the Scheme;
• under a Commonwealth guarantee in relation to the entity’s
borrowings.
The Workplace Relations Minister may also authorise payment
of Commonwealth costs associated with the levy and the Scheme.
The
maximum amount appropriated under this provision is $500 million.
Where the Minister is satisfied that more levy has been received by the
Commonwealth than will be required for the purpose of the levy - ie to meet the
costs of the Scheme under clause 23 - the Minister may determine a scheme for
the distribution of the surplus. The scheme must be prescribed in the
regulations and the surplus must be distributed in accordance with that
scheme.
Under this clause the Workplace Relations Minister must prepare a report
at the end of each reporting period that sets out details of the following:
• payments authorised by the Workplace Relations Minister during the reporting period under clause 22
• the activities during the reporting period of any company that were activities in respect of which the company received payments under clause 22
• distributions of surplus levy under clause 23 during the reporting period
The Workplace Relations Minister must table a copy of the report in each
House of Parliament. Under clause (3) the reporting period will initially be
the five months ending on 31 March 2002 and thereafter the 12 months ending on
31 March of subsequent years.
The Governor General may make regulations under the Act. In particular,
under subclause (2), regulations may be made on:
• the manner of payment of the levy;
• the repayment of overpayments;
• civil penalties on operators for failure to collect the levy, failure to do what is required with the collected levy and failure to lodge a return as required;
• refunds of the levy by issuers of tickets;
• the records that persons are required to keep on air passenger tickets;
• information that persons are required to provide on air passenger tickets;
• the form of warrant for section 18; and
• the fines (not exceeding 10 penalty units) for offences under the regulations.
[1] Under the Crimes Act
1914 one penalty unit is $110 for an individual or $550 for a body
corporate.
[2] ‘Levy-related
documents’ are any documents relating to matters in respect of which levy
is payable.