Airport Handling Services Australia Pty Ltd v Commissioner of Taxation [2021] FCA 1405

TAXATION – Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) – Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) – Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 2) 2020 (Cth) (the “JobKeeper scheme”) – appeal from decision of Commissioner of Taxation to disallow Notice of Objection to decisions that applicants were not eligible for payments under JobKeeper scheme – where applicants Australian resident sovereign entities within the meaning of s 880‑15 of the Income Tax Assessment Act 1997 (Cth) – where applicants had been eligible employers under the JobKeeper scheme – where applicants made payments in anticipation that they would be subsidised under the Jobkeeper scheme – where amendments made by Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 2) 2020 (Cth) to criteria for eligibility as from a past date– whether legislative instrument operated retrospectively – whether applicants had rights as at the time of registration of legislative instrument that were “affected so as to disadvantage [them]” within the meaning of s 12 of the Legislation Act 2003 (Cth) – whether applicants “entitled” to JobKeeper payments under s 6(1) of Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) as at past date

STATUTORY INTERPRETATION – whether provisions of the Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 2) 2020 (Cth) commenced before registration – where legislative instrument provided that the whole of the instrument “commenced” immediately after registration – where legislative instrument also provided that certain amendments applied in relation to periods of time before registration – whether legislative instrument operated retrospectively – whether “commences” in s 12 of the Legislation Act 2003 (Cth) has the same meaning as “take effect” – whether applicants had rights as at the time of registration of legislative instrument that were “affected so as to disadvantage [them]” within the meaning of s 12 of the Legislation Act 2003 (Cth)

STATUTORY INTERPRETATION – whether provisions of the Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 2) 2020 (Cth) were ultra vires – whether the text, context and purpose the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) conferred authority to make rules with retrospective effect

Full decision here