Commonwealth Places (Mirror Taxes Administration) Act 1999

Applied law is defined in section 3(1) as the provisions of a State taxing law that apply in relation to a Commonwealth place in accordance with the Commonwealth Act. This is not a separate law but the State law itself, read with modifications necessary to operate in a Commonwealth place as a Commonwealth law. Commonwealth place means a place in Western Australia acquired by the Commonwealth for public purposes (section 3(1)). This picks up the constitutional term from section 52(i) of the Commonwealth Constitution. The definition does not include places merely leased by the Commonwealth; acquisition must have occurred. State taxing law is defined by reference to the Commonwealth Act meaning. It covers State laws that impose taxes, duties, fees or charges, such as the Duties Act 2008, the Pay‑roll Tax Assessment Act 2002, or the Land Tax Assessment Act 2002. The term corresponding applied law means an applied law that corresponds to a particular State taxing law (section 3(1)). This pairing is fundamental to the modification power in section 7: the State taxing law and its corresponding applied law must be read together to avoid double taxation or gaps. The phrase excluded by section 52(i) of the Commonwealth Constitution is defined in section 3(1) to mean inapplicable by reason only of the operation of section 52 of the Commonwealth Constitution in relation to Commonwealth places. This is the precise constitutional trigger: if a State taxing law is invalid only because of section 52(i), then the mirror regime applies. If it is invalid for some other reason (for example, inconsistency with a Commonwealth law under section 109), the Act does not help. Modifications is defined broadly in section 3(1) to include additions, omissions and substitutions. This gives the regulation‑making power under section 7(2) wide scope to adjust the text of State taxing laws. State authority includes the Governor, a Minister, a court, holders of judicial office, bodies created under State law, and officers or employees of the State or those bodies (section 3(1)). The Act ensures these authorities can act under the applied law despite any State law to the contrary (section 6). In relation to, when used in relation to a Commonwealth place, includes “in, or in relation to, the Commonwealth place or former Commonwealth place” (section 3(1)). That extends the reach of provisions dealing with things that have a connection to the place even after its status changes.

The Act primarily affects taxpayers who have dealings with property located on Commonwealth places within Western Australia, or who carry out activities on such land that would ordinarily attract State tax. This includes individuals, companies, and other entities that own land, conduct business, enter transactions, or employ staff on Commonwealth‑acquired land. For example, a defence contractor leasing a building on a military base may need to pay stamp duty on the lease, or an employer operating a canteen on Commonwealth land may face payroll tax. The Act also affects State revenue agencies, particularly the Office of State Revenue and the Department of Finance, which must administer the applied laws in conjunction with the Commonwealth Act. Those agencies must adjust their assessment and collection systems to account for the mirror regime, and they must ensure that modifications prescribed under section 7 are correctly applied. State authorities generally, including courts and tribunals, are affected because they may be required to exercise powers under an applied law (section 6). The Act binds the Crown in right of the State and, as far as legislative power permits, in all other capacities (section 4). That means State government departments occupying Commonwealth places are also subject to the regime. Legal practitioners advising clients on transactions involving Commonwealth land must be aware that the applicable taxing law may be the applied law rather than the unmodified State taxing law, and that the two may differ in minor ways due to modifications. Accountants and compliance professionals preparing tax returns or duty statements must check whether the place of the transaction is a Commonwealth place. The Commonwealth itself is indirectly affected because the arrangement under section 5 is between the Governor of Western Australia and the Governor‑General, and because the Commonwealth Act (which is not part of this State Act) provides the foundation for the applied laws. However, the Act does not impose any direct obligations on the Commonwealth.

The Act creates few substantive duties or rights beyond those that already exist under the underlying State taxing laws. Its main effect is to confirm that those duties and rights operate in the Commonwealth place context. The principal duty on State authorities is found in section 6: “Despite any State law, a State authority has any power, duty or function that the Commonwealth Act authorises or requires the authority to exercise or perform.” This overrides any inconsistent State law, including any limitation on the authority’s jurisdiction in relation to Commonwealth places. For example, a State revenue officer may enter a Commonwealth place to conduct an audit if the Commonwealth Act authorises it, even if a State law would normally restrict entry onto Commonwealth land. Taxpayers have the right to have their combined liability under the State taxing law and the corresponding applied law calculated so that it is “as nearly as possible the same” as the liability would be under the State law alone if the place were not a Commonwealth place (section 7(1)(b)). This is a right to neutrality: the existence of a Commonwealth place should neither increase nor decrease the tax burden. Section 9 provides a significant procedural right: in proceedings under a State taxing law, an objection must not be allowed merely because proceedings have also been commenced or are pending under a corresponding applied law. This prevents a taxpayer from arguing double jeopardy or abuse of process simply because the same transaction could be taxed under both laws. Section 8 gives a right to continuation: if proceedings were started under the applied law but the court later finds the place is not a Commonwealth place and therefore the State taxing law is not excluded by section 52(i), the proceedings continue as if they had been brought under the State law. Section 10 provides the same for appeals. Section 11 creates a right for any party to proceedings to rely on a certificate from an authorised person (a delegate under the Commonwealth Lands Acquisition Act 1989) about the ownership of land or interests in land, as evidence of whether the place is a Commonwealth place. The certificate is prima facie evidence; it can be rebutted. Section 15 gives a right to treat references in instruments to an applied law as references to the corresponding State taxing law, if the State law is not excluded by section 52(i). This prevents technical invalidity of documents that use the wrong label.

The Act itself does not prescribe any penalties or create new offences. Enforcement and penalties flow from the underlying State taxing laws and the applied laws that mirror them. For example, if a taxpayer fails to pay duty on a transaction that occurs on a Commonwealth place, the penalty provisions of the Duties Act 2008 (WA) as applied by the mirror regime would apply, subject to any modifications made under section 7. The Act does, however, ensure the continuity of penalties when the status of a place changes. Section 13 provides that when a Commonwealth place ceases to be a Commonwealth place, any penalty or forfeiture incurred under the applied law may be imposed as if the applied law had not ceased to have effect (subsection 13(4)). Similarly, investigations and proceedings may be continued (subsection 13(5)). Section 14 mirrors this when a place becomes a Commonwealth place: penalties incurred under the State law before the change may still be imposed, and proceedings may continue as if the State law had not ceased to have effect (subsections 14(3) and (4)). These provisions prevent enforcement gaps. Section 12 validates things purportedly done under an applied law if the corresponding State law was not actually excluded by section 52(i). This means that if a revenue officer issued an assessment or penalty notice under the applied law but the place was not a Commonwealth place (so the applied law had no valid operation), the assessment or penalty is treated as validly done under the State law. This saves enforcement actions that might otherwise be void for jurisdictional error. The validation is not unlimited: it only applies where the State law is not excluded by section 52(i). If the State law was invalid for some other reason, the validation does not operate. Regulations made under section 16 could prescribe matters related to enforcement, but the Act does not specify any particular enforcement mechanisms. In practice, enforcement follows the normal procedures under each State taxing law, with the added complexity of determining whether the applied law or the State law governs.

The Act sits within a two‑tier scheme created with the Commonwealth Places (Mirror Taxes) Act 1998. The Commonwealth Act enables the Commonwealth to apply State taxing laws as Commonwealth laws in relation to Commonwealth places. This State Act then provides the administrative machinery for Western Australia. The two Acts are interdependent: section 5 of this Act authorises the Governor to make an arrangement with the Governor‑General, and section 6 confers powers on State authorities that are “authorised or required” by the Commonwealth Act. Without the Commonwealth Act, this Act would have no operation. Section 3(1) defines “Commonwealth Act” as the Commonwealth Places (Mirror Taxes) Act 1998 of the Commonwealth. The Act also interacts directly with the Constitution. The entire scheme exists because of section 52(i) of the Commonwealth Constitution, which gives the Commonwealth exclusive legislative power over places acquired for public purposes. The Act’s definitions and provisions are built around the concept of “excluded by section 52(i)”. If a State taxing law is invalid for a reason other than section 52(i) (for example, inconsistency with a Commonwealth law under section 109), this Act does not save it. The Act interacts with a range of specific State taxing laws, including but not limited to the Duties Act 2008, the Land Tax Assessment Act 2002, the Pay‑roll Tax Assessment Act 2002, the Stamps Act 1921 (if still relevant), and the Taxation Administration Act 2003. Each of those laws must be read with the modifications prescribed under section 7. The Act also interacts with the Lands Acquisition Act 1989 (Commonwealth), because section 11 of this Act relies on “authorised person” defined as a delegate under section 139 of that Commonwealth Act for the purpose of issuing certificates about land ownership. Section 15 deals with instruments (such as contracts, deeds, or notices) that refer to an applied law. It provides that, if the corresponding State law is not excluded by section 52(i), the reference is to be read as a reference to the State law. This prevents documents from becoming defective simply because they used the wrong legislative label. Part 4 (sections 13 and 14) interacts with the general law on transitional provisions and the doctrine of implied repeal, ensuring that rights and liabilities are preserved when the status of a place changes. Section 4 states that the Act binds the Crown in right of the State and, as far as legislative power permits, in all other capacities. This means it overrides any Crown immunity that might otherwise apply to State entities in relation to this Act, but the qualification about legislative power leaves open the possibility that the Commonwealth Crown may not be bound by this State Act.

The Commonwealth Places (Mirror Taxes Administration) Act 1999 was enacted as Act No. 21 of 1999 and received Royal Assent on 24 June 1999. Section 2(1) provides that the Act comes into operation on the day of Royal Assent. However, section 2(2) provides a retrospective deeming provision: when an arrangement has been made under section 5 with the Commonwealth, section 7 is deemed to have come into operation on 6 October 1997. This means that the modification power in section 7 operates retrospectively to that date, but not earlier. The note to section 2 explains that no liability for tax can be imposed for things that happened before 6 October 1997. The Table of Acts in the compilation shows only the original Act; no amending Acts are listed. The compilation notes indicate that the Act has been reprinted but not amended in substance. The defined terms list at the end of the compilation shows the current form. The Act has therefore remained unchanged since its enactment. The only operational variation would arise from regulations made under section 16, but those are subordinate legislation and do not appear in the Table of Acts. The regulations can prescribe modifications to State taxing laws under section 7(2), and those modifications may take effect from a day earlier than publication (but not earlier than 6 October 1997). The absence of amendment history suggests the Act has worked as a stable piece of machinery legislation, requiring no legislative adjustment to its core provisions.

The Act itself gives no indication of any litigation history. No cases are cited in the text. The Act is procedural and validating, so it is unlikely to generate much litigation on its own terms. The main area of litigation would be disputes over whether a particular place is a “Commonwealth place” within the meaning of the Act and section 52(i) of the Constitution. Section 11 provides a mechanism to resolve that evidentiary issue through certificates, but those certificates are only evidence, not conclusive. Cases could arise where a taxpayer argues that land has not been “acquired by the Commonwealth for public purposes” under the constitutional test, or that the acquisition was for a purpose that ceased, so the place is no longer a Commonwealth place. Another potential source of litigation is the application of modifications under section 7. A taxpayer might argue that a modification exceeds the power in section 7(1) because it is not “necessary or convenient” for the purposes stated, or that the combined liability is not “as nearly as possible the same” as the State‑only liability. The validation provisions in Part 4 could also be challenged if a taxpayer argues that a thing “purportedly done” under the applied law was not validly validated because the State law was excluded for a reason other than section 52(i). Courts may need to interpret the phrase “excluded by section 52(i)” to determine whether a particular State taxing law fails only because of that provision or also because of other constitutional impediments. The interaction with the Commonwealth Act may also give rise to questions about whether the arrangement under section 5 has been properly made or varied. However, no significant reported cases are known, and the Act is designed to minimise litigation by smoothing over jurisdictional cracks.

The principal trap for practitioners is the retrospective operation of section 7. When an arrangement is made under section 5, section 7 is deemed to have come into operation on 6 October 1997. This means that modifications to State taxing laws can take effect from that earlier date, potentially creating liability or altering the legal position for transactions that occurred between 6 October 1997 and the date the arrangement was actually made. The note to section 2 does warn that no liability is imposed for things before 6 October 1997, but the period after that date is fair game. Practitioners must check whether an arrangement exists and, if so, when it was made, because the deeming provision can catch transactions that were thought to be outside State tax. A second trap is the reliance on the definition of “Commonwealth place”. It is limited to places “acquired by the Commonwealth for public purposes”. Places merely leased, licensed, or occupied under some other arrangement are not Commonwealth places for this Act, even if the Commonwealth has de facto control. A taxpayer may mistakenly think a leased post office is a Commonwealth place and fail to lodge a duty return, only to later face penalties for non‑lodgment. Conversely, a taxpayer may assume land is not a Commonwealth place but discover it was acquired by the Commonwealth under a compulsory process. Section 11 certificates are only evidence; they can be rebutted. Relying solely on a certificate without independent legal advice on the status of the land carries risk. Another gotcha is the validation provision in section 12. If something was purportedly done under an applied law but the State law was not actually excluded by section 52(i), the validation treats it as done under the State law. This can save an assessment or penalty that would otherwise be invalid, but it can also confirm a disadvantageous assessment that the taxpayer had hoped to challenge on jurisdictional grounds. Section 9 prevents a taxpayer from objecting merely because there are duplicate proceedings under the applied law and the State law. This means a taxpayer could face two parallel proceedings and cannot object solely on that ground. The burden of managing both proceedings falls on the taxpayer. Section 15 on instruments is another trap: a deed or contract that refers to an applied law will be read as referring to the State law if the State law is not excluded. But if the State law is excluded (because it is actually a Commonwealth place and the applied law is the only valid law), the reference may be ineffective. Drafters of instruments should use neutral language or refer to both laws to avoid uncertainty. Finally, the definition of “modifications” in section 3(1) includes additions, omissions and substitutions. Regulations under section 7(2) can prescribe modifications that take effect retrospectively to 6 October 1997. A taxpayer may have relied on the unmodified State law for a transaction, only to find that a later regulation changes the outcome for that earlier period. The power is not unlimited: the modifications must be necessary or convenient for the purposes in section 7(1), but the discretion is broad.

Compliance with the Act requires first determining whether a particular transaction, property, or activity is within the scope of the mirror‑tax regime. The starting point is to ask whether the land in question is a Commonwealth place: that is, has it been acquired by the Commonwealth for public purposes? If the answer is no, the ordinary State taxing laws apply without any modification under this Act. If the answer is yes, the regime applies. The taxpayer must then check whether an arrangement has been made under section 5 of this Act and section 9 of the Commonwealth Act. If no arrangement exists, the mirror regime is not operational, and the State law may still not apply because of section 52(i), creating a potential tax vacuum. Practitioners should not assume the regime is active; they should verify with the State revenue authority or the Commonwealth Attorney‑General’s Department whether an arrangement is in place. Once the arrangement is confirmed, the taxpayer must identify the relevant State taxing law and its corresponding applied law. Compliance obligations are the same as under the State law, except to the extent modified by regulations under section 7. The modifications are the key variable. They may change rates, thresholds, exemptions, or procedures. The taxpayer must locate the regulations made under section 7(2) and apply them. If no modifications have been prescribed, the State taxing law applies in its ordinary form, but still operates as an applied law (a Commonwealth law). That has implications for appeal rights, judicial review, and the applicable court. The taxpayer should ensure that any return, objection, or payment is lodged with the correct authority. Section 6 ensures State authorities have the power to act, so the same agency that handles State tax will handle the applied law. However, the legal character of the liability is different: it is a Commonwealth tax, not a State tax. This may affect the application of the Commonwealth Taxation Administration Act 1953 or the Commonwealth Places (Mirror Taxes) Act 1998 provisions on recovery, interest, and penalties. Taxpayers should keep records of the status of the place and of any certificates issued under section 11, as those can be crucial evidence in a dispute. If the place changes status (ceases to be or becomes a Commonwealth place), the transitional provisions in sections 13 and 14 preserve rights and liabilities. The taxpayer should review whether any proceeding or objection is pending and ensure it is continued in the correct jurisdiction. Finally, because the Act is validated and operates retrospectively, taxpayers who have previously filed returns or paid tax under the applied law may need to reassess whether their compliance was correct. The validation in section 12 may retrospectively validate actions that were technically unlawful at the time, but it may also create a liability the taxpayer thought had expired. Professional advice should be sought on any transaction that touches Commonwealth land, and the regulations should be checked regularly for new modifications.