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SR 2001 No. 209 Regulations as made
Principal Regulations
Administered by: Veterans' Affairs
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 65
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR06-Aug-2001
Tabled Senate06-Aug-2001
Gazetted 02 Aug 2001

Veterans' Entitlements (Special Assistance - Motorcycle Purchase) Regulations 2001 2001 No. 209

EXPLANATORY STATEMENT

Statutory Rules 2001 No. 209

Issued by the Authority of the Minister for Veterans' Affairs

Veterans' Entitlements Act 1986

Veterans' Entitlements (Special Assistance -- Motorcycle Purchase) Regulations 2001

Section 216 of the Veterans' Entitlements Act 1986 (the Act) enables the Governor-General to make regulations prescribing matters that are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Under section 106 of the Act, the Repatriation Commission (the Commission) may, in such circumstances as are prescribed, and subject to such conditions (if any) as are prescribed, grant assistance or benefits to a veteran or to a dependant of a veteran.

The purpose of the Regulations is to enable the Commission to reimburse disabled veterans for the amount of Goods and Services Tax (GST) they pay on the purchase of motorcycles or parts therefor (the GST rebate).

Essentially the GST rebate is not a new benefit. It merely restores disabled veterans to the position they were in prior to the introduction of the GST. Under the former sales tax system, disabled veterans were exempt from paying sales tax on car or motor cycle purchases.

The "Goods and Services Tax Legislation", which replaced the "Sales Tax Legislation", continued the exemption from "sales tax" for disabled veterans purchasing cars but failed to continue the exemption for disabled veterans purchasing motorcycles.

The Regulations restore veterans to the "motorcycle tax free status" they enjoyed under previous legislation.

Generally speaking, a disabled veteran is eligible for a GST rebate on the purchase of a motorcycle or motorcycle part if, in the case of the motorcycle, two years have elapsed since the veteran last received a GST rebate (two year rule).

However if the old motorcycle had exceeded 40,000 kms or had been destroyed and was uninsured, then the owner does not need to wait two years before being eligible for a GST rebate on a new motorcycle. Further, the Repatriation Commission has a discretion to waive the "two year rule" in special circumstances.

Where a motorcycle part is purchased, the GST rebate is payable if the part is a replacement part and insurance did not cover the loss or destruction of the original part.

In order to be eligible for a GST rebate, the relevant motorcycle must be for the purchaser's personal use.

The amount of the GST rebate is 1/11 of the value of the motorcycle or part, if that value does not exceed the "car depreciation limit" set out in the Income Tax Assessment Act 1997 and if that limit is exceeded, then the amount of GST rebate is 1/11 of the amount of the limit.

Details of each of the Regulations are set out in the attachment.

The Regulations would be taken to have commenced on 1 July 2000.

The fact that the Regulations would take effect before gazettal does not cause the Regulations to be ineffective by virtue of subsection 48(2) of the Acts Interpretation Act 1901 because the rights of a person at gazettal would not be affected so as to disadvantage the person nor will a liability be imposed on any person in respect of anything done or omitted to be done before gazettal. The Regulations are beneficial legislation.

0102926A-010627A

ATTACHMENT

Veterans' Entitlements (Special Assistance - Motorcycle Purchase) Regulations 2001

Regulation 1       refers to the name of the Regulations - the Veterans' Entitlements (Special Assistance - Motorcycle Purchase) Regulations 2001.

Regulation 2       provides for the Regulations to be taken to have commenced on 1 July 2000.

Regulation 3       defines terms used in the Regulations.

A number of these terms are defined by reference to other pieces of legislation. The meaning of these terms are set out below, where practical, and where not, the Internet site of the terms is given.

car means a motor vehicle (except a motor cycle or similar vehicle) designed to carry a load of less than 1 tonne and fewer than 9 passengers.

car depreciation limit means, for the 1997-98 financial year, $55,134. Note that this amount is indexed annually.

GST means tax that is payable under the *GST law (http://scaletext.law.gov.au/html/pasteact/3/3269/1/PA007920.htm) and imposed as goods and services tax by any of these:

(a) the A New Tax System (Goods and Services Tax Imposition--General) Act 1999; or

(b) the A New Tax System (Goods and Services Tax Imposition--Customs) Act 1999; or

(c) the A New Tax System (Goods and Services Tax Imposition--Excise) Act

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1999.

GST free has the same meaning it has in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999. (see: http://scaletext.law.gov.au/html/pasteact/3/3269/1/PA007920.htm).

recipient created tax invoice means a tax invoice belonging to a class of tax invoices that the Commissioner of Taxation has determined in writing may be issued by the *recipient (recipient, in relation to a supply, means the entity to which the supply was made.) of a taxable supply (see: http://scaletext.law.gov.au/html/pasteact/3/3269/l/PA007920.htm).

tax invoice means a document that complies with subsection 29-70 of the A New Tax System (Goods and Services Tax) Act 1999 and, if applicable, section 54-50 of that Act (see:http://scaletext.law.gov.au/html/pasteact/3/3269/0/PA001650.htm and http://scaletext.law.gov.au/html/pasteact/3/3269/0/PA003620.htm)

Regulation 4       describes the type of person who is eligible for a motorcycle benefit (eligible person), namely:

•       a veteran who is totally and permanently incapacitated (section 24 of the Act) and who receives a disability pension (Part II of the Act); or

•       a veteran who lost a leg or both arms as a result of service; or

•       a veteran who has a leg or both arms that is permanently and completely useless as a result of service.

Regulation 5       sets out the conditions that an eligible person must satisfy in order to be eligible for a motorcycle benefit in relation to the purchase of a motorcycle, namely:

•       the motorcycle must be purchased after 1 July 2000 and GST must be payable in respect of the purchase; and

•       the motorcycle must be for personal use even if the purchaser cannot drive it and must be transported by another person (example: as a pillion passenger or side-car passenger); and

•       the purchaser had not received a motorcycle benefit in relation to the purchase of another motorcycle in the two years immediately before the latter purchase ("the two-year rule").

There are exceptions to the two-year rule, namely:

•       the earlier purchased motorcycle had travelled more than 40, 000 km; or

•       the earlier purchased motorcycle had been "written off" and it was uninsured; or

•       the Repatriation Commission is satisfied there are special circumstances justifying the purchase of the latter motorcycle, such as the fact that the earlier purchased motorcycle had been stolen and insurance did not provide for its replacement.

Further conditions that an eligible person must satisfy in order to be eligible for a motorcycle benefit in relation to the purchase of a motorcycle, are:

•       the purchaser had not, in the two years immediately before the purchase of the motorcycle ("the two-year rule"), purchased a car or motorcycle that was exempt from any GST or sales tax, as the case may have been, by reason of a disability of the aforementioned purchaser.

There are exceptions to the two-year rule, namely:

•       the car had travelled more than 40 000 km; or

•       the car had been "written off" and it was uninsured; or

•       the Repatriation Commission is satisfied there are special circumstances justifying the purchase of the motorcycle such as the fact that the car had been stolen and insurance did not provide for its replacement.

Regulation 6       sets out the conditions an eligible person must satisfy in order to be entitled to a motorcycle benefit in relation to the purchase of a motorcycle part, namely:

•       the part must be purchased after 1 July 2000 and GST must be payable in respect of the purchase; and

•       the part must be for a motorcycle in respect of which a person has been granted a motorcycle benefit; and

•       the part must replace a part that is worn out, or was destroyed, damaged or stolen and not insured for its replacement value.

Regulation 7       details the application procedure for a motorcycle benefit. An application must be:

•       in writing; and

•       in accordance with the form approved by the Repatriation Commission; and

•       accompanied by a tax invoice or a recipient created tax invoice as required by the A New Tax System (Goods and Services Tax) Act 1999.

An application must be forwarded to, or delivered at, (lodged) an office of the Department of Veterans' Affairs in Australia and may be made on behalf of the person seeking the motorcycle benefit. An application must be in respect of a person who is in Australia on the day on which the application is lodged.

Regulation 8       applies to the withdrawal of an application for a motorcycle benefit and provides that:


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•       an application that has not been decided may be withdrawn by the applicant;

•       a withdrawal may be made orally or in writing to the Department of Veterans' Affairs;

•       once withdrawn, the application is taken to have not been made;

•       the Department of Veterans' Affairs must make a written record of a withdrawal that is made orally;

•       an applicant who made an application on behalf of a person must not withdraw an application unless authorised by the person.

Regulation 9       imposes duties on the Secretary of the Department of Veterans' Affairs in relation to investigating an application for a motorcycle benefit. Those duties are:

•       where a proper application is correctly lodged the Secretary must investigate it;

•       upon the completion of the investigation, the Secretary must submit the application to the Repatriation Commission for decision; and

•       an application submitted to the Commission must be accompanied by any evidence submitted by the applicant and by any documents relevant to the application under the control of the Department of Veterans' Affairs, including any relevant evidence or documents obtained during the investigation.

Regulation 10       imposes duties on the Repatriation Commission ("Commission") in relation to deciding an application for a motorcycle benefit submitted to it by the Secretary of the Department of Veterans' Affairs. Those duties are:

•       to decide the application and, in the Commission's discretion, to grant the application if the applicant is eligible for a motorcycle benefit;

•       to record the decision in writing;

Regulation 11       sets out the duties of the Repatriation Commission ("Commission") when it decides an application for a motorcycle benefit. The Commission is required to:

•       notify the applicant, in writing, of the decision, of the reasons for the decision and of the applicant's right to have the decision internally reviewed by the Repatriation Commission.

Regulation 12       provides that a decision under regulations 10 (decision on application for a motorcycle benefit), 15 (decision that person must repay a motorcycle benefit) or 17 (decision on an internal-review) is to take effect on the day specified in the decision which may be the day the decision is made or a later or earlier day.

Regulation 13       sets out the formula for ascertaining the motorcycle benefit. The motorcycle benefit in relation to a motorcycle or motorcycle part ("item") depends on the market value (including GST) of the motorcycle or part.

If the market value of the item does not exceed the car depreciation limit ($55, 134 at the time of the Regulations), then the motorcycle benefit is an amount equal to 1/11 of that value.

If the market value of the item does exceed the car depreciation limit ($55, 134 at the time of the Regulations), then the motorcycle benefit is an amount equal to 1/11 of the car depreciation limit.

The Motorcycle Benefit is exempt from income tax (see: sections 52-65 and 52-75 of the Income Tax Assessment Act 1997 and is determined not to be income under the Act (this is achieved by determining under paragraph 5H(12)(c) of the Act that the motorcycle benefit is an exempt lump sum).

Regulation 14        governs the situation where the Repatriation Commission has determined under section 122 of the Veterans' Entitlements Act 1986, that a person's motorcycle benefit is to be paid into the person's bank account. In these circumstances, the account may be kept by the person alone, jointly or in common with another person.

Regulation 15       sets out "recovery procedures" where the Repatriation Commission ("Commission") is satisfied that a recipient of a motorcycle benefit owned a GST-free car during the period on and from the date of purchase of the motorcycle to which the benefit relates and ending on the day when the person would be entitled to a motorcycle benefit in relation to the purchase of another motorcycle.

In these circumstances the Commission must decide that the person must repay the amount of the motorcycle benefit or part thereof and the Commission must notify the person in writing of:

•       the Commission decision that the person must repay the motorcycle benefit; and

•       the reasons for that decision; and

•       the person's right to have the Commission conduct an internal-review of the decision.

A motorcycle benefit that is to be repaid is deemed to be a debt due to the Commonwealth.

Regulation 16       sets out the procedure for a person seeking an internal-review of a decision of the Repatriation Commission ("Commission") made under Regulation 10 (decision on an application for a motorcycle benefit) or under Regulation 15 (decision that person must repay motorcycle benefit).

The person, or another person on the person's behalf, must make a request to the Commission seeking a review of the relevant decision.

The request must be in writing and must set out the grounds for seeking the review and must be lodged with the Commission (via forwarding or delivering the request to the Department of Veterans' Affairs) within three months after the day when the person was notified of the decision which the person seeks to have reviewed.

Regulation 17       details the duties of the Repatriation Commission ("Commission") when it receives a request to review its decision in respect of an application for a motorcycle benefit or in respect of the repayment of a motorcycle benefit, namely:

•       to review the decision within three months after the day the request was lodged with the Commission or within any longer period as agreed in writing between the Commission and the person requesting the review;

•       to affirm or set aside the decision under review; and

•       substitute a fresh decision for any decision set aside.

A Commission delegate is not permitted to review a decision if that delegate was the person who made the decision being reviewed.

Regulation 18       sets out the duties of the Repatriation Commission ("Commission'") upon completing an internal review of a Commission-decision, namely to:

•       make a written record of its decision;

•       give a copy to the person who requested the review;

•       ensure that the record sets out the Commission's findings on relevant questions of fact;

•       ensure that the record refers to the evidence or other material on which the findings are based;

•       set out in the record, notice of the person's right to apply to the Administrative Appeals Tribunal for a review of the Commission's internal-review decision. (This duty is only imposed on the Commission in respect of a review-decision made in relation to a decision concerning an application for a motorcycle benefit. ´The duty is not imposed on the Commission in respect of a review-decision made in relation to a decision concerning the repayment of a motorcycle benefit (Regulation 15) because a person dissatisfied with such a decision is not given, under these Regulations, the right to have the decision reviewed by the Administrative Appeals Tribunal ("AAT") because it could be reviewed by a court in any debt-recovery proceedings if a person disagreed with the decision, and to also provide a right of review by the AAT in this situation would be unnecessary and could cause confusion).

•       include in the record, the reasons for the Commission's decision.

•       ensure that in providing the record, regard is had to the relevant AAT Code of Practice made under section 27B of the Administrative Appeals Tribunal Act 1975 (Internet link:

http://scaleplus.law.gov.au/html/instruments/0/14/0/IN000020.htm

Regulation 19       provides a person with a right to apply to the Administrative Appeals Tribunal in respect of a decision of the Repatriation Commission made on an internal review (review-decision) in relation to a decision concerning an application for a motorcycle benefit. The application needs to be made within 3 months after the day when the person seeking review was given a record of the Repatriation Commission's review-decision.