Background
Council is obliged to provide information to the public under Right to Information legislation.
The prescribed fee for an application under RTI is (say) $44.50. This fee is set by RTI legislation and paid to Council by the applicant. It can take some time for Council officers to assess the application for compliance with RTI legislation and, if approved, then process the request and locate the information.
The introduction of a new suite of fees is being considered where the same information covered by RTI legislation could be supplied to the public, but not through the legislated RTI process. For example a customer could come to the counter and ask for:
- a copy of Council policy or procedure
- a copy of CCTV footage
- a copy of closed Council meetings minutes
- information held by Council relating to the applicant (sometimes referred to as ‘information relating to self’)
The customer would not be required to complete the RTI application or pay the RTI application fee, Council Officers would not be required to assess the application for compliance against RTI legislation and the information would simply be provided. Essentially the information would be supplied, but not in line with RTI legislation.
The new fees would be set at a partial cost recovery basis – reflecting the true officer time/cost involved. The average fee would be (say) $160 per request per hour for the first hour and (say) $119 per hour after. The RTI process would still be available to customers if they wished to obtain the information through that process.
Questions
Would GST be applicable to the new proposed charges for requests for information (outside the RTI process)?
Would this still be considered a regulatory supply/regulatory activity meaning no GST applies?
Would this no longer be considered a ‘request for information under freedom of information legislation’ as it is not done in line with the requirements of that legislation?
Answer
The GST treatment of fees charged by Councils for information depends on whether the supply is regulatory in nature or not.
Section 81-15.01 of the GST Regulations deals with ‘Fees and charges which do not constitute consideration’, and states as follows (noting paragraph (f)):
Subject to section 81-15.02 of this instrument, for the purposes of section 81-15 of the Act, payment of the following kinds of Australian fees and charges, or the discharging of a liability to make such a payment, is not the provision of consideration:
(a) a fee or charge for:
(i) the kerbside collection of waste; or
(ii) the supply, exchange or removal of bins or crates used in connection with kerbside collection of waste;
(b) royalties charged in relation to natural resources;
(c) a fee or charge imposed on an industry to finance regulatory or other government activities connected with the industry;
(d) a fee or charge to compensate an Australian government agency for costs incurred by the agency in undertaking regulatory activities;
(e) a fee or charge imposed in relation to a court, tribunal, commission of inquiry or sheriffs office;
(f) a fee or charge for a supply of a regulatory nature made by an Australian government agency;
(g) a fee or charge for entry to a national park.
Subsection 81-10.01(1) of the GST Regulations deals with ‘Fees and charges which constitute consideration’, and states as follows (noting paragraph (g)):
Subject to section 81-15.02 of this instrument, for the purposes of subsection 81-10(2) of the Act, the following kinds of Australian fee or charge are prescribed:
(a) a fee for parking a motor vehicle in a ticketed or metered parking space;
(b) a toll for driving a motor vehicle on a road;
(c) a fee for hire, use of, or entry to a facility, except for an entry fee to a national park;
(d) a fee for the use of a waste disposal facility;
(e) a fee for pre-lodgment advice if:
(i) the advice relates to an application to which subsection 81-10(4) of the Act applies; and
(ii) it is not compulsory to seek the advice;
(f) a fee or charge for the provision of information by an Australian government agency if the provision of the information is of a non-regulatory nature;
(g) a fee or charge for a supply of a non-regulatory nature;
(h) a fee or charge for a supply by an Australian government agency, where the supply may also be made by a supplier that is not an Australian government agency.
It is not always obvious what is regulatory in nature or not. For guidance on this aspect, we refer you to a previous TaxEd article on this topic.
For guidance on the type of fees that may be exempt, we refer you to Class Ruling CR 2019/61. We note that while this ruling is issued and applies to South Australian Councils, we would expect the ATO to apply the concepts consistently to other Councils for similar supplies. In this regard, we refer to the table in CR 2019/61 that deals with ‘information services’.
We have included some examples of such fees below:
Information services
| Fees and charges | Description | GST treatment |
| Freedom of information request fees | Fees charged under the Freedom of Information Act 1991 (SA) (FOI Act) including:
• application fees for access to the Councils documents • fees for dealing with an application and giving access to the Councils documents • fees for photocopying the Councils documents • application fees for a review of a determination made by the Council under section 29 of the FOI Act (internal reviews). |
Exempt:
• subsection 81-10(1) (covered by subsection 81-10(5)). |
| Fee for a certificate of liabilities – rates and charges | Fee for a certificate of liabilities in relation to rates and charges on land under section 187 of the LG Act. | Exempt:
• subsection 81-10(1) (covered by subsection 81-10(5)). |
| Search fee – land and business sale and conveyancing | Fee for undertaking a search in accordance with section 7 of the Land and Business (Sale and Conveyancing) Act 1994 (SA). | Exempt:
• subsection 81-10(1) (covered by subsection 81-10(5)). |
| Archive search fee | Fee for undertaking an archive search for information of a non-regulatory nature. | Taxable:
• section 9-5 (prescribed under paragraph 81-10.01(1)(f) of the GST Regulations as consideration for subsection 81-10(2)). |
| Fees for access to development records | Fees for access to development records, including application fees and fees in respect of giving access to the records, for information of a non-regulatory nature. | Taxable:
• section 9-5 (prescribed under paragraph 81-10.01(1)(f) of the GST Regulations as consideration for subsection 81-10(2)). |
| Fees for photographs and negatives | Fees for the provision of photographs and/or negatives (including heritage documents) of a non-regulatory nature. | Taxable:
• section 9-5 (prescribed under paragraph 81-10.01(1)(f) of the GST Regulations as consideration for subsection 81-10(2)). |
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