Public resources, relevant money and relevant property The PGPA Act (and the finance law more generally) is aimed at promoting the proper use and management of public resources. Section 8 of the PGPA Act has the following definitions: public resources means relevant money, relevant property, or appropriations. relevant money means: (a) money standing to the credit of any bank account of the Commonwealth or a corporate Commonwealth entity; or (b) that is held by the Commonwealth or a corporate Commonwealth entity. relevant property means: (a) property than relevant money) that is owned or held by the Commonwealth or a corporate Commonwealth entity; or (b) any other thing prescribed by the rules. It is important to recognise that the concept of relevant money does not match the concept of the Consolidated Revenue Fund. Because relevant money includes money in the bank account of a corporate Commonwealth entity, not all money that is relevant money forms part of the Consolidated Revenue Fund. On the other hand, there is a kind of money that is in the Consolidated Revenue Fund that is not relevant money. This money is called “other CRF money” (see section 105 of the PGPA Act). Application of the Public Service Act Agencies If you are creating a new statutory body, you will also need to consider the application of the PS Act to the body. The PS Act is primarily concerned with public service employment and so you will need to consider whether the PS Act should apply to some or all of the officers or employees of the new statutory body. The PS Act views Commonwealth bodies from a different perspective from the PGPA Act. The Commonwealth bodies it deals with are “Agencies”. Section 7 of the PS Act provides the meaning of Agency (and related definitions) as follows: Agency means: (a) a Department; or (b) an Executive Agency; or (c) a Statutory Agency. Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency. Executive Agency means an Executive Agency established under section 65. Statutory Agency means a body or group of persons declared by a law of the Commonwealth to be a Statutory Agency for the purposes of this Act. The new statutory body that you are creating should not be a Department of State or an Executive Agency (see paragraph 13).
section 54A of the Excise Act 1901; section 1775 of the A New Tax System (Goods and Services Tax) Act 1999; section 215 of the A New Tax System (Luxury Car Tax) Act 1999; section 2725 of the A New Tax System (Wine Equalisation Tax) Act 1999. These provisions mean that the standard provision in paragraph 322 will not be effective to exempt the body from those special Commonwealth taxes and specific provisions will need to be drafted to do that. If you are instructed to exempt a statutory body from one of these “special” taxes, you will need to specifically exempt the body from that tax. You should advise your instructors to discuss the exemption with Treasury and Finance early in the drafting process. The following is an example of a provision exempting a body from Commonwealth income tax and State and Territory taxes: xx Exemption from taxation (1) For the purposes of section 5025 of the Income Tax Assessment Act 1997, the [statutory body] is taken to be a public authority constituted under an Australian law. Note: This the [statutory body] is exempt from income tax. (2) The [statutory body] is not subject to taxation under a law of a State or Territory, if the Commonwealth is not subject to the taxation. If you want to create a general exemption from Commonwealth tax that does not include the “special” taxes, do not include a specific exception dealing with any of the “special” taxes. The Commonwealth’s view is that it is strongly arguable that an exception dealing with one of those taxes, even though redundant, will have the effect of nullifying the overriding rules of construction that would otherwise apply to the others. This is because the overriding rules of construction are subject to a contrary intention appearing in other legislation. There may be a sufficiently clear legislative intent to exempt a statutory body from a particular tax even if express words are not used as required by the overriding rule of construction. A corporate statutory body that is within the shield of the may be exempt from some Commonwealth, State and Territory taxes without express provision. However, if your instructors want the body to be exempt from taxation, you should provide for this expressly (whether or not the provision set out in paragraph 288 has been included). Use of subordinate instruments You should draw to your instructors’ attention the likelihood that the Senate Standing Committee for the Scrutiny of Bills will object to a provision that deals with the taxexempt status of a statutory body by relying on subordinate legislation.