Show download pdf controls
  • Commissioner’s remedial power process pathway

    The following is a step-by-step pathway of the Commissioner of Taxation's remedial power (CRP) process.

    1. The CRP Secretariat in our Policy, Analysis & Legislation (PAL) business line receives an application for a potential candidate from either internal or external sources.
    2. The CRP Secretariat undertakes an initial triage in consultation with the relevant business line new measures team.
    3. Are the legislative criteria to exercise the CRP satisfied and the negligible impact on the Commonwealth budget confirmed by Treasury?
    1. The application is referred to the CRP Advisory Panel and Board of Taxation.
    2. The panel is convened to consider the candidate and make recommendations as to whether the CRP can be exercised.
    3. Is the candidate considered suitable by the panel?
    1. A legislative instrument and the explanatory statement are drafted and put out for consultation. The Assistant Treasurer is informed.
    2. Public consultation on the modification is undertaken for four weeks. Feedback is taken into account and the Assistant Treasurer receives a summary of this process.
    3. The Commissioner’s approval is sought to apply the CRP. This is represented by the PAL Deputy Commissioner approving use of the remedial power through advice provided in an Office minute. The draft legislative instrument and explanatory statement then become final.
    4. Legislative instrument consultation and approval processes are then completed.
    5. If the candidate is not suitable for CRP, a quality assurance form will be provided to the CRP Advisory Panel for their review.
    6. If the CRP Advisory Panel advises they believe the candidate meets the CRP criteria, we will reassess the candidate taking into account the panel’s advice. After reassessment:

      • if the candidate is determined to be suitable – we will seek advice on the impact on the Commonwealth budget and then follow the CRP process
      • if the candidate is determined not to be suitable – we will advise the panel and finalise the candidate.

      After a candidate is finalised as unsuitable it is published (subject to privacy limitations) on ato.gov.au on the register of When the Commissioner’s remedial power has been considered but not applied.

    1. Can it be actioned via a miscellaneous technical amendment (MTA)? This is also considered for candidates finalised as unsuitable.
      • Yes – we work with Treasury to consider whether issue should be resolved by MTA.
      • No – we consider other processes to raise the issue with Treasury if needed.
       

    CRP Advisory Panel and Secretariat

    The CRP Advisory Panel is made up of external expert consultants.

    The CRP Secretariat is made up of internal business line representatives who are CRP experts.

    CRP Secretariat decision making process

    The CRP Secretariat assess each candidate against the following criteria. The candidate must:

    • not be inconsistent with the intended purpose or object of the provision being modified
    • be considered reasonable having regard to the intended purpose or object of the provision and whether compliance costs are disproportionate to the intended purpose or object
    • have a negligible impact on the Commonwealth budget, as advised by the Secretary of the Treasury, the Secretary of the Department of Finance or an authorised APS employee of either department.

    Each assessment involves questioning the relevant experts, seeking further information if necessary and ensuring that all other avenues have been exhausted, for example, administrative solutions.

    Legislative instrument consultation and approval processes

    The legislative instrument and explanatory statement are then registered and tabled in parliament.

    The legislative instrument takes effect after the full parliamentary disallowance period of 15 sitting days has expired.

    The legislative instrument is then published on our Legal database as a formal determination by the PAL Deputy Commissioner under section 370-5 of Schedule 1 to the Taxation Administration Act 1953.

    See also:

    Last modified: 27 Aug 2020QC 63501