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Report Details


Committee Name:

Delegated Legislation Committee (2001 - 2017)

House:

Joint
Report Type:Report

Title:

Supreme Court (Fees) Amendment Regulations (No. 2) 2008, Children’s Court (Fees) Amendment Regulations (No. 2) 2008, District Court (Fees) Amendment Regulations 2008, Magistrates Court (Fees) Amendment Regulations (No. 2) 2008, Fines, Penalties and Infringement Notices Enforcement Amendment Regulations (No. 2) 2007 and Other Court Fee Instruments
Report No:32
No of Pages:302
Physical Location:Legislative Council Committee Office

Presentation Date:

05/14/2009
Inquiry Name(s):Supreme Court (Fees) Amendment Regulations (No. 2) 2008, Children’s Court (Fees) Amendment Regulations (No. 2) 2008, District Court (Fees) Amendment Regulations 2008, Magistrates Court (Fees) Amendment Regulations (No. 2) 2008, Fines, Penalties and Infringement Notices Enforcement Amendment Regulations (No. 2) 2007 and Other Court Fee Instruments


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Hide details for Executive SummaryExecutive Summary

Principal issue

1.1The central issue in this inquiry was whether four types of imposts, found in eight instruments increasing court fees, were authorised or contemplated by empowering legislation in the circumstance that the imposts were significantly over - recovering the cost of provision of the services in respect of which they were imposed. In the case of the application for grant of probate fees, the over-recovery was up to 291%.

1.2As the Committee has previously reported, where:

the empowering legislation authorises the imposition of a “fee”; and

the Committee receives evidence that the quantum of an impost does not bear a “reasonable relationship” to the costs of providing the relevant services (or the costs incurred in establishing or administering a licence scheme) [fn1] in respect of which it is imposed,

the Committee views the impost as being of the nature of a tax, regardless of its label of “fee”. [fn2]

1.3There is no legislation authorising the imposition of a tax by way of the relevant imposts. The Committee, therefore, recommends disallowance of the instruments noted in paragraph 2 below, which increase the over - recovering fees, including probate fees.

1.4As Members will be aware, the current and former Delegated Legislation Committees have spent a considerable proportion of their time inquiring whether fees imposed by subsidiary legislation are, in fact, an unauthorised tax.[fn3] As it reported in 2004, both Committees have consistently received legal advice:

that only costs that are related to the provision of a specific direct benefit to the individual required to pay the fee are recoverable under a general legislative provision which authorises the rendering of fees for services or licences.[fn4]

1.5Although it is not expressly stated, the thrust of the Executive’s argument that the relevant imposts are authorised appears to suggest that the Parliament is not able to insist on recognition being given by Executive to section 46(7) of the Constitutions Act Amendment Act 1899. The Committee rejects any such suggestion.

1.6Section 46(7) of the Constitutions Act Amendment Act 1899 may not be justiciable by the courts. It is, nonetheless, a rule that the Parliament has imposed on itself and one from which it does not lightly depart. On this point, the then President of the Legislative Council said, in his Ruling on Appropriation (Consolidated Fund) Bill
(No 1) 1994, Breaches Section 46(6) of Constitutions Acts Amendment Act 1899
,
6 December 1994:

However, to assert that section 46, because it is non-justiciable, may be set aside where, or because, it creates inconvenience is unacceptable. … Although enforcement of section 46 lies with the Houses, rather than the courts, its binding nature is unaffected by the means of enforceablilty. [fn5]

1.7Absent any intent contrary to that provision in an Act of Parliament, the delegated legislation-making power conferred on the Executive must be interpreted consistently with section 46(7) of the Constitutions Act Amendment Act 1899.

1.8To conclude otherwise would transfer to the Executive the decision as to whether or not an impost should be a fee or tax.

1.9In its Report No. 13 - Road Traffic (Fees for Vehicle Licences) Amendment Regulations (No. 2) 2004 and Road Traffic (Licensing) Amendment Regulations
(No. 4) 2004
, the Committee stated:

The common law and s 46 of the Constitution Acts Amendment Act 1899 impose strict legislative requirements in relation to taxes. A tax may only be imposed by an Act of Parliament, and such an Act must deal solely with the tax and no other matter.[fn6]

1.10To accept the Executive’s argument would result in disregard of section 46(7) of the Constitutions Act Amendment Act 1899 by the Executive, so that any Act conferring power to impose fees through subsidiary legislation may be interpreted as empowering imposition of a tax, unless imposition of a tax is specifically negatived by that particular Act. In the Committee’s opinion, this is not the basis on which the Parliament delegates its power to impose imposts to the Executive.

1.11Reflecting on the centuries of turmoil and revolt that lay behind the development of the common and statutory law in the area of imposts by the Executive, Isaacs J said in Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co. Ltd:

… the parliamentary guardianship of taxation and expenditure is the pivot of the Constitution and the keystone of the arch of personal liberty ….

For centuries under responsible government, as any history will tell us, the insistence of the House of Commons on control of taxation was the basis of popular liberty.[fn7]

1.12The Committee considers that the Auditor General provided an accurate summary of relative roles of the Parliament, the Committee and the Executive in this area during a hearing in 2005 before the Committee, when he said:

The principle of the tax or fee is established and debated and put in place for the long term, but the year-by-year variations are done routinely and are subject to review by a committee such as this, which has the power to move for disallowance if there is a problem with its application. That is why it is very important. [fn8]

1.13In a hearing before the Committee in 2003, the Auditor General said:

Again this is very much a personal view, but with the introduction of user-pays the approach in the public sector and across the western world is that the community is probably not receptive to further increases in general taxation, so a more palatable option is to minimise increases in general taxation and introduce what I might loosely categorise as specific taxation.[fn9]

1.14If the Executive is of the view that full “cost recovery” is in order and that some users of particular services should subsidise other, unrelated services, that case must be put to the Parliament for debate, resulting in public scrutiny and transparency, through introduction of a tax Act or amendment to an Act to permit the imposition of a tax. The Executive is not authorised to introduce a tax in the guise of a fee for services.

1.15After a careful consideration of all of the issues and the arguments put forward by the Executive (see Chapter 3), the Committee has concluded that the following “fees”:

Application fee for grant of probate (value not exceeding $10,000)

Application fee for grant of probate (value exceeding $100,000)

Fee for Issue of a registrar’s certificate

Application fee for admission as a practitioner

Application fee for an extraordinary driver’s licence

are, in fact, unauthorised taxes in so far as they over-recover the cost of provision of the services in respect of which they are imposed.

Secondary Issue

1.16A secondary issue was that, due to the practice of the Department of the Attorney General of estimating its costs at either Registry or whole of court level, [fn10] the Committee has been unable to reach a conclusion as to whether the balance of the imposts under consideration in this inquiry are authorised or contemplated by the empowering legislation.

1.17As Chapter 5 outlines, the transparency of cost recovery models used by government departments and agencies, and in particular in respect of court fees, has long been a concern of the Committee. The Committee intends to continue its meetings with the Auditor General in respect of this problem.
1.18The Committee wishes to record it thanks to former Members who participated in this inquiry and, in particular, to its two sub-committees: the first consisting of Hon Vincent Catania MLC (as he then was) and Mr Christian Porter MLA (now the Attorney General); the second consisting of Mr Joe Francis (Chairman) MLA, Hon Ray Halligan MLC and Ms Janine Freeman MLA.

Recommendations
2.The recommendation for partial disallowance of the Supreme Court (Fees) Amendment Regulations (No. 2) 2008 is explained in Chapter 2 at paragraphs 2.76 and 2.77:

Page 28

Recommendation 1: The Committee recommends that regulations 5, 6 and 7 of the Supreme Court (Fees) Amendment Regulations (No. 2) 2008 be disallowed.

Page 29

Recommendation 2: The Committee recommends that the District Court (Fees) Amendment Regulations 2008 be disallowed.

Page 29

Recommendation 3: The Committee recommends that the Children’s Court (Fees) Amendment Regulations (No. 2) 2008 be disallowed.

Page 29

Recommendation 4: The Committee recommends that the Magistrates Court (Fees) Amendment Regulations (No. 2) 2008 be disallowed.

Footnotes

fn1As defined by section 45A of the Interpretation Act 1984. See Chapter 4, “Licence Fees”.

fn2This is also the legal approach. See, for example, Isaacs J in Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co. Ltd (1922) 31 CLR 421 at pp 463-4 (quoted in the attachment to the Opinion of Mr O’Connor QC (which is Appendix 17) at paragraph 2.11).

fn3See Chapter 2, paragraphs 2.27 to 2.28 and Chapter4, paragraphs 4.3 and 4.14 for extracts from the Committee’s previous reports and Chapter 1, paragraph 1.9 for reference to further reports to this effect.

fn4Western Australia, Joint Standing Committee on Delegated Legislation, Report No. 25, Road Traffic (Drivers’ Licence) Amendment Regulations (No. 2) 1997 and Road Traffic (Licensing) Amendment Regulations (No.2) 1997, 25 August 1997, p5 (paragraph 6.5) quoted in the current Committee’s Report No. 13, Road Traffic (Fees for Vehicle Licences) Amendment Regulations (No. 2) 2004 and Road Traffic (Licensing) Amendment Regulations (No.4) 2004, 29 November 2005, at p13 (paragraph 7.2).

fn5Hon Clive Griffiths MLC, President, Western Australia, Legislative Council, Parliamentary Debates (Hansard), 6 December 1994, p8467. The then President had earlier stated: “For its part, the Assembly, through subsections (6) and (7), agrees not to impose a tax or appropriate money for the ordinary annual services of the Government as part of Bills that do other things as well. … Fourth, it can be anticipated that the Supreme Court and the High Court, faced with an interpretation of section 46, would read it consistently with the High Court’s pronouncements on the interpretation of the Commonwealth Constitution’s provisions.” (Ibid pp8465-6.)

fn6Western Australia, Joint Standing Committee on Delegated Legislation, Report No. 13 - Road Traffic (Fees for Vehicle Licences) Amendment Regulations (No. 2) 2004 and Road Traffic (Licensing) Amendment Regulations (No.4) 2004, dated 29 November 2005, p10 (paragraph 6.8).

fn7Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co. Ltd (1922) 31 CLR 421 at pp434 and 449.

fn8Mr Desmond Pearson, Auditor General, and Mr Glen Clarke, Executive Director, Office of the Auditor General, Transcript of Evidence, 14 September 2005, p3.

fn9Mr Desmond Pearson, Auditor General, and Dr Peter Wilkens, Director Policy, Office of the Auditor General, Transcript of Evidence, 11 June 2003, p7.

fn10Western Australia Auditor General’s - Second Public Sector Report 2006, Report No. 8, 30 August 2006, p35.