Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Glossary
The following abbreviations and acronyms are used throughout this Explanatory Memorandum.
| Abbreviation | Definition |
|---|---|
| ABN | Australian Business Number |
| ANTS | Government's Tax Reform Document:Tax Reform: not a new tax, a new tax system |
| APS | Australian Public Service |
| ATO | Australian Taxation Office |
| Commissioner | Commissioner of Taxation |
| FSG Bill | Fuel Sales Grants Bill 2000 |
| GIC | general interest charge |
| GST | goods and services tax |
| ITAA 1997 | Income Tax Assessment Act 1997 |
| PGBA Bill | Products Grants and Benefits Administration Bill 2000 |
| RBA | running balance account |
| TAA 1953 | Taxation Administration Act 1953 |
| taxation law | Act of which the Commissioner has general administration, or regulations under such an Act |
General outline and financial impact
Fuel Sales Grants Bill 2000
This Bill confers an entitlement to grants to be paid to registered sellers of petroleum fuel for sales to end users that are made at an eligible location. The amount of the grant is to be calculated according to a method prescribed in the regulations.
Date of effect: The grants are to be paid for qualifying sales made on or after 1 July 2000.
Proposal announced: Not previously announced.
Financial impact: The financial impact of this measure is estimated at $500 million over 4 years. As the grants are entitlement-based the actual figure will vary depending on the total eligible claims paid.
Compliance cost impact: Sellers of petroleum fuel in eligible locations will be required to register for the fuel sales grant scheme and apply for payments.
Product Grants and Benefits Administration Bill 2000
This Bill provides a standardised administrative framework for grants and benefits administered by the Commissioner. This Bill will apply to the fuel sales grants scheme.
Date of effect: The provisions of this Bill will apply from the date of Royal Assent.
Proposal announced: Not previously announced.
Financial impact: The ATO will require some additional administration funds to administer schemes to which this Bill applies.
Compliance cost impact: Provides a standardised administrative scheme to reduce duplication and promote consistency in the law.
Fuel Sales Grants (Consequential Amendments) Bill 2000
This Bill will ensure the appropriate application to grants and benefits schemes of those provisions of the TAA 1953that apply generally to Acts administered by the Commissioner of Taxation.
Date of effect: From the date of Royal Assent to the FSG Bill.
Proposal announced: Not previously announced.
Financial impact: Nil.
Compliance cost impact: Nil.
Chapter 1 - Fuel sales grants
Outline of Chapter
1.1 This Chapter explains the provisions of the FSG Bill. These provisions, together with the regulations they authorise, will determine whether you have an entitlement to a fuel sales grant.
Context of Reform
1.2 As announced in the ANTS tax reform document, the Government will be reducing excise on petrol and diesel on 1 July 2000, to ensure that prices to consumers need not arise on the introduction of the GST.
1.3 By this Bill, the Government proposes a fuel sales grants scheme targeted at consumers in non-metropolitan and remote areas. Grants will be paid at a higher rate for sales to consumers in remote areas. The grant scheme will address the divergence in fuel prices between metropolitan and regional areas.
Summary of new law
1.4 Registered sellers of petroleum fuel will be entitled to grants under the fuel sales grants scheme for sales to end users provided the sales are made at eligible locations.
1.5 The regulations will specify which places in Australia are eligible locations, and the rate of grant to apply to fuel sales made at those places.
1.6 Administrative provisions to give effect to the scheme are contained in the PGBA Bill, which accompanies this Bill. The provisions of the PGBA Bill are explained in Chapters 2 to 10. Provisions of the TAA 1953 will also apply to the administration of the scheme. Consequential amendments to the TAA 1953 are explained in Chapter 11.
Detailed explanation of the FSG Bill
1.7 On enactment this Bill may be cited as the Fuel Sales Grants Act 2000. [Clause 1]
1.8 The Fuel Sales Grants Act 2000 will commence on the day on which this Bill receives the Royal Assent. [Clause 2]
Act binds States and Territories
1.9 The States and Territories will be bound by the Act, however, they are not liable to prosecution for any offence under the Act. [Clause 3]
1.10 The provisions of this Bill use terms defined either in this Bill [subclause 4(1)] or in the PGBA Bill [subclause 4(2)] .
1.11 The term 'fuel' is defined by reference to products classified in the Excise Tariff. The term 'eligible location' is to be defined in the regulations to this Bill. [Subclause 4(1)]
1.12 The time and place at which fuel is sold is defined by the moment at which the purchaser takes possession of the fuel. [Subclause 4(3)]
1.13 The Commissioner will have the general administration of the Fuel Sales Grants Act 2000. [Clause 5]
Entitlement to a fuel sales grant
1.14 To obtain a fuel sales grant you must be registered for that purpose [subclause 6(1)] . Registration requirements are prescribed in Part 3 of the PGBA Bill. Claims can be made at the same time as registration is applied for [subclause 6(2)] .
1.15 You are entitled to a fuel sales grant only for sales made on or after 1 July 2000 in an eligible location to an end user. [Clause 7]
Example 1.1
If you enter into a contract before 1 July 2000 for the delivery of fuel to an end user on or after that date, the supply of fuel will be taken by subclause 5(3) to be a sale of fuel, for fuel sales grant purposes, at the time the fuel is delivered to the purchaser. This is so even if a deposit is paid before 1 July 2000.
1.16 The regulations will prescribe how grants are to be calculated. [Clause 8]
1.17 Authority is conferred on the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the provisions of this Bill. Regulations may also be made prescribing matters required or permitted by this Bill. [Clause 9]
Chapter 2 - Administration of the fuel sales grants
Outline of Chapter
2.1 This Chapter explains how the provisions of the PGBA Bill will apply to the administration of the fuels sales grants scheme.
2.2 It explains the provisions contained in Part 1 of the PGBA Bill that addresses preliminary matters and in Part 2 that identifies the grants and benefits schemes to which the provisions of the PGBA Bill are to apply.
Summary of new law
2.3 The PGBA Bill provides a set of provisions that are needed to administer a grants or benefits scheme. The PGBA Bill is modelled on some of the administrative provisions contained in the Diesel and Alternative Fuels Grants Scheme Act 1999. The PGBA Bill provides a standardised framework for the administration of such schemes and will reduce duplication in the law and promote consistency in its application. The provisions of the PGBA Bill will operate in conjunction with those in the TAA 1953 that apply generally to laws administered by the Commissioner.
2.4 The fuel sales grants scheme will adopt the provisions of the PGBA Bill. The FSG Bill provides only for determining a person's entitlement to a fuel sales grant. Rules governing the registration of, payments to and obligations of fuel sales grant claimants are contained in the PGBA Bill.
Detailed explanation of PGBA Bill Parts 1 and 2
2.5 On enactment this Bill may be cited as the Product Grants and Benefits Administration Act 2000. [Clause 1]
2.6 The provisions of this Bill will commence on the day on which this Bill receives the Royal Assent. [Clause 2]
2.7 The object of this Bill is to provide a legislative framework for the administration of certain grants and benefits administered by the Commissioner [clause 3] . A common set of rules will provide efficiencies in both statutory and administrative design for schemes providing grants and benefits. Provisions of the TAA 1953, which apply generally to laws administered by the Commissioner, will also apply to such schemes.
Act binds States and Territories
2.8 The States and Territories are bound by the Act, however, they are not liable to prosecution for any offence under the Act. [Clause 4]
2.9 Certain terms used in the provisions of this Bill are defined to promote certainty in meaning [clause 5] . The meanings attributed are self-explanatory. To promote consistency, some terms are either defined in other Acts or have meanings identical to those given by other Acts.
Operation of offence provisions
2.10 The specifying of a penalty in a provision of this Bill indicates that a person found guilty of a contravention of that provision cannot be punished by a penalty greater than the specified amount, or that the offence referred to in the provision is punishable by a penalty not exceeding that amount. [Clause 6]
2.11 The Commissioner will have the general administration of the Act [clause 7] . Because the definition of 'taxation law' in section 2 of the TAA 1953 will include the Product Grants and Benefits Administration Act 2000, the provisions of the TAA 1953 that apply to taxation laws will also apply to grants and benefits schemes to which the PGBA Bill applies. These include provisions relating to:
- •
- the general interest charge;
- •
- the treatment of payments, credits and RBA surpluses;
- •
- prosecutions and offences;
- •
- objections, reviews and appeals; and
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- the collection and recovery of tax-related liabilities.
Grants and benefits covered by the PGBA Bill
2.12 Part 2 of this Bill provides the mechanism whereby grants and benefits administered by the Commissioner will be subject to the provisions of this Bill. It contains a table which lists each grant or benefit together with the short title of the Act conferring entitlement to the grant or benefit to which the provisions of this Bill are to apply. Such Acts are referred to in this Bill as an 'entitlement Act'. [Clause 5 definition of entitlement Act]
2.13 Grants proposed by the FSG Bill are listed in the table of applicable grants and benefits [clause 8] . Unless there is a contrary intention expressed, all of the provisions of the PGBA Bill will apply to the administration of the fuel sales grants scheme.
Chapter 3 - Registration of claimants
Outline of Chapter
3.1 This Chapter explains the provisions dealing with registration of claimants for grants or benefits to which the PGBA Bill applies. The rules dealing with registration are contained in Part 3 of this Bill. Registration is a prerequisite for entitlement to the fuel sales grant.
Detailed explanation of Part 3
3.2 Applications for registration must be made on the 'approved form' [subclause 9(1)] . The term approved form is defined as having the same meaning as that in the Dictionary to the ITAA 1997 [clause 5 definition of approved form] . It therefore includes an application document approved in writing by the Commissioner, that is signed by the person the form requires, contains the information the form requires and is lodged with the Commissioner in the manner the Commissioner requires. The registration application form may be a part of another document such as a grant or benefit claim form.
3.3 The Commissioner must register you if the Commissioner is satisfied that you have an ABN and that you satisfy any specific requirements in relation to a particular grant or benefit and any other prescribed conditions. [Subclause 9(2)]
3.4 A registered person is obliged to notify the Commissioner within 28 days of any change in the prescribed registration details for the grant or benefit they have claimed [subclause 9(4)] . Failure to do so constitutes an offence and may be subject to penalty under Part III of the TAA 1953.
3.5 If your application for registration is refused, the Commissioner must give you written notice of the refusal containing reasons for the refusal [subclause 10(1)] . Refusal to register is a reviewable decision under Part IVC of the TAA 1953 [clause 53] .
3.6 There is a time limit of 28 days for the Commissioner to decide on your application for registration after which you may give written notice to the Commissioner that you wish to treat your application as having been refused. [Subclause 10(2)]
3.7 For the purposes of reviewing a deemed refusal under subclause 10(2) the Commissioner is taken to have refused your application for registration on the day on which you give written notice. [Subclause 10(3)]
3.8 The Commissioner can cancel your registration if you haven't claimed a grant or benefit within a specified period [subclause 11(1)] or if your eligibility for registration has changed [subclause 11(2)] .
3.9 You can cancel your registration by requesting the Commissioner to do so. [Subclause 11(3)]
3.10 The Commissioner must give written notice of cancellation [subclause 11(5)] . A cancellation does not prevent you from applying for a fresh registration [subclause 11(4)] .
Chapter 4 - Payment of grants and benefits
Outline of Chapter
4.1 This Chapter explains the provisions dealing with claims and the assessment and payment of grants and benefits. These provisions are contained in Part 4 of the PGBA Bill.
Detailed explanation of Part 4
4.2 Grants and benefits are payable for claim periods applicable to each grant or benefit scheme. Claim periods for each grant or benefit must be determined by the Commissioner [subclause 14(1)] . The Commissioner may also determine the claim period for a particular entity or kind of entity in relation to a grant or benefit scheme [subclauses 14(2) and 14(3)] .
Advances on account of grants or benefits
4.3 The Commissioner will be authorised to make advances on account of a grant or benefit that may become payable. [Subclause 13(1)]
4.4 If you receive an advance of a grant or benefit that may become payable you must repay an amount if:
- •
- the amount of the advance is greater than the actual amount of the grant or benefit; or
- •
- you do not make a claim for the grant or benefit within 28 days after the end of the relevant payment period.
4.5 In the former case, the excess amount is due and payable at the time you make the claim. In the latter, the entire amount of the advance is due and payable on the 28th day after the end of the relevant payment period. [Subclause 13(4)]
4.6 The Commissioner must not make an advance unless requested to do so and the amount must not exceed the amount requested. [Subclause 13(5)]
4.7 The Commissioner will be able to make written guidelines for deciding whether to make advances of grants or benefits. The Commissioner will be legally bound by those guidelines. [Clause 14]
4.8 Your entitlement to a grant or benefit does not crystallise until you make a claim for payment [subclause 15(1)] . Your claim must be made in the form approved by the Commissioner and contain such information as may be prescribed in the regulations [subclause 15(2)] . Your registration does not override the requirements for making claims [subclause 15(3)] .
4.9 A claim must be signed unless it is transmitted electronically in which case it must contain an electronic signature approved by the Commissioner [paragraph 15(2)(d) and subclause 15(6)] . Only one claim can be made for each claim period, although you can request the Commissioner to make an amended assessment to correct an assessment based on an incorrect claim [subclause 15(4)] . A claim must be made within 2 years after the end of the claim period in which the act or transaction giving rise to the grant or benefit entitlement occurred [paragraph 15(2)(e)] .
4.10 The Commissioner may request further information about your claim within 28 days after the claim was made. The Commissioner need not consider your claim until the information is provided. [Clause 16]
4.11 The Commissioner must make an assessment of your claim [clause 17] and give you notice of that assessment. However, failure to give you notice does not affect the validity of the assessment [subclause 19(1)] . The Commissioner may give the notice to you in an electronic form if you made your claim electronically [subclause 19(2)] .
4.12 The Commissioner may rely on statements, made by or on behalf of a claimant, in a claim or otherwise [clause 18] , and is able to amend an assessment at any time [subclause 20(1)] . If you are liable to pay an amount as a result of an amended assessment that amount is taken to have been due and payable at the time of the original assessment [subclause 20(3)] . This means that the GIC will accrue from that time.
4.13 You can request the Commissioner to make an amended assessment, for instance, if you later discover an error made on a claim form [subclause 21(1)] . The Commissioner must comply with the request if it is made within 2 years of the end of the relevant claim period, or such further time as the Commissioner allows [subclause 21(2)] .
4.14 The production of an assessment notice is conclusive evidence that the assessment was properly and correctly made, except when the assessment itself is the subject of review proceedings. [Clause 22]
4.15 If you are entitled to a grant or benefit in respect of a payment period, that grant or benefit is a debt due to you by the Commonwealth and you may sue to recover it. [Subclause 23(1)]
4.16 Grants and benefits are payable to you in the manner determined by the Commissioner. [Subclause 23(2)]
4.17 If a payment made to you exceeds your entitlement to the grant or benefit, the extent to which it exceeds your entitlement is an 'overpaymentdebt' payable to the Commissioner [clause 5 definition of overpayment debt] . An overpayment debt is categorised as a 'scheme debt'. A scheme debt may also include an amount of penalty that has been assessed, for example, if you made a false or misleading statement in a claim or to an officer performing functions in relation to the grant or benefit scheme [clause 5 definition of scheme debt] .
4.18 If an entity has a scheme debt and is also entitled to one or more other grants or benefits the amount of the outstanding scheme debt may be offset against the entity's entitlement to those other grants or benefits. If the Commissioner applies an amount of grant or benefit in satisfaction of a scheme debt the grant or benefit so applied is taken to have been paid to the entity. [Clause 24]
4.19 The RBA provision in Part IIB of the TAA 1953 provide for credits to be allocated against other tax debts and any GIC amount outstanding. Similarly, an RBA surplus may be allocated against a scheme debt.
Chapter 5 - Record-keeping requirements
Outline of Chapter
5.1 This Chapter explains the requirements of the record-keeping provisions of Part 5 of the PGBA Bill. These provisions contain the rules about what records you need to keep and how long you need to retain them to be entitled to a grant or benefit. A failure to comply with the record-keeping requirements disqualifies you from an entitlement to a grant or benefit.
Detailed explanation of Part 5
Entitlement conditional on satisfying record-keeping requirements
5.2 To be eligible to claim a grant or benefit, records substantiating a claim for the grant or benefit must be kept and retained. [Paragraph 25(1)(a) and subclauses 25(2) and 26(2)]
5.3 If you make a statement in a claim undertaking to comply with the post-claim record keeping requirements the Commissioner can assume that you will comply with those requirements. However, if you fail to comply with those requirements the Commissioner may amend the assessment of your claim. [Subclause 25(2)]
Record-keeping requirements determined by the Commissioner
5.4 An applicant for a grant or benefit will be taken to have satisfied the requirement to keep records substantiating a claim if he or she keeps records of the kind and in a manner specified in a written determination made by the Commissioner [subclause 26(4)] .
5.5 Records kept to substantiate a claim must be retained until the time the claim is made [paragraph 26(2)(b)] and for a further 5 years after the claim [subclause 27(2)] . The records need not be retained for this time if the Commissioner tells the applicant for the grant or benefit that the records do not need to be retained, or if the applicant is a company, it is finally dissolved before the end of the 5 years [subclause 27(5)] .
5.6 The records kept and retained by the applicant for a grant or benefit must be in the English language, or be readily accessible and easily convertible into the English language. [Subclause 26(3)]
Commissioner may require records to be produced
5.7 The Commissioner may give written notice to a person, who has applied for or has been paid a grant or benefit, to produce the records they have kept to substantiate their claim for the grant or benefit. The notice must give 28 days or more to comply. The 28 day period starts from the day after the notice is given. The Commissioner can extend the time to comply with the notice. [Subclauses 27(3) and 27(4)]
5.8 Merely failing to comply with the notice will not result in an offence under section 8C of the TAA 1953. However, failing to comply with the notice will mean that the record-keeping requirements have not been satisfied and it will be taken that there is not, and has never been, an entitlement to claim the grant or benefit. [Subclauses 25(1) and 27(6)]
Records that are lost or destroyed
5.9 If you have a complete copy of the lost or destroyed record, that copy will be treated as the original from the time the original was lost or destroyed [subclause 28(2)] . If such a copy is not available, but the Commissioner is satisfied that you took reasonable precautions to prevent the loss or destruction, your entitlement to a grant or benefit is not affected by your failing to retain or produce the original record [subclause 28(3)] .
Chapter 6 - Compliance enforcement measures
Outline of Chapter
6.1 This Chapter explains the provisions dealing with disqualification for fraud (Part 6) , contrived schemes (Part 7) and civil penalties (Part 8) . These provisions form part of the compliance assurance framework that focuses on countering or deterring non-compliant behaviour.
Detailed explanation of Parts 6, 7 and 8
6.2 Part 6 contains rules disqualifying claimants because of fraudulent acts of the claimant or an individual or entity closely associated with the claimant. They ensure that claimants cannot benefit from a grant or benefit scheme if they, or a person closely associated with their management have knowingly or recklessly made false statements to a person who is exercising powers, or performing functions under the Act or entitlement Act, and that statement results in a greater grant or benefit than they were otherwise entitled to.
Disqualification of claimant for fraud
6.3 A claimant will be disqualified, and taken to have been disqualified from receiving a grant or benefit if the claimant knowingly or recklessly makes a false statement (including omissions) in a material particular that would have resulted in an increased grant or benefit. The disqualification shall be taken as commencing at the start of the payment period in which the disqualification occurred, and ending at the end of 2 years or such shorter period as the Commissioner determines. [Clause 29]
Disqualification for aiding and abetting etc. fraud
6.4 If a claimant knowingly or recklessly makes a false statement (including omissions) that would have resulted in an increased grant or benefit, anyone that aided, abetted, counselled or procured the making of a false statement by an entity, or were in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the making of that false statement will also be disqualified. [Clause 30]
Disqualification of body corporate - executive disqualified
6.5 A body corporate will be disqualified from receiving a grant or benefit at a particular time if it has a director, secretary or person who is concerned in, or takes part in, the management of the body corporate that is disqualified under clauses 29 or 30 . [Clause 31]
Disqualification of partnership - partner disqualified
6.6 A partnership will be disqualified from receiving a grant or benefit at a particular time if it has:
- •
- a partner that is disqualified (including a partner that is a body corporate because a director, secretary or person involved in the body corporate's management is disqualified); or
- •
- an individual employee that is disqualified and is concerned in, or takes part in, the management of the partnership.
Disqualification of trust trustee disqualified
6.7 A trust will be disqualified from receiving a grant or benefit at a particular time if it has:
- •
- a trustee that is disqualified (including a trustee that is a body corporate because a director, secretary or person involved in the body corporate's management is disqualified); or
- •
- an individual employee that is disqualified and is concerned in, or takes part in, the management of the trust.
6.8 Part 7 contains a provision which enables the Commissioner to disregard schemes entered into for the sole or dominant purpose of creating an entitlement to a grant or benefit.
6.9 A scheme is defined to be any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable by legal proceedings. A plan, proposal, action, course of action or course of conduct will constitute a scheme if its conduct is unilateral or otherwise. [Subclause 34(3)]
6.10 In the context of the fuel sales grants scheme, the provision is directed against arrangements designed for the sole or dominant purpose of enabling acts or transactions that otherwise would not give rise to a fuel sales grant to be taken into account for the purposes of calculating an entitlement to the grant. The provisions enable the Commissioner to treat those acts or transactions as if they had never happened. [Subclause 34(1)]
6.11 In deciding to treat an act or transaction as never having happened the Commissioner will make a determination to that effect. [Subclause 34(2)]
6.12 The GIC will apply to scheme debts that remain unpaid after the day by which they should have been paid [subclause 35(1)] . This liability represents compensation to the Commonwealth for the time value of the money that you had access to when that money was correctly payable to the Commonwealth.
6.13 A designated scheme debt is a debt resulting from an overpayment or an amount payable by way of penalty for a false statement. The GIC is calculated from the day on which the amount becomes due to be paid. [Subclauses 35(1), (2) and (3)]
6.14 The GIC does not apply to an overpayment debt that arose because of an error made by the Commissioner (provided the product stewardship benefit was received in good faith) or was due to a change in regulations for the purpose of calculating the amount of the product stewardship benefit. [Subclauses 35(4) and (5)]
Penalty for making false statements
6.15 A penalty applies if you make a false statement that results in the amount of a grant or benefit payable exceeding that which would have been payable if you had not made the false statement. The statement may be considered false irrespective of whether or not you knew it was false. The penalty for such a false statement is double the amount of the excess grant or benefit. [Clause 36]
6.16 The Commissioner must make an assessment of a penalty for a false statement and give you notice of the assessment as soon as practicable after the assessment is made. However, failure to notify you of the assessment does not affect the validity of the assessment. The Commissioner may notify you electronically or the notification may be included in another type of notice the Commissioner gives you. The penalty becomes due and payable on the day specified in the notice but must be at least 14 days after the notice is given to you. [Clause 37]
6.17 The Commissioner may amend an assessment of penalty at any time [clause 39] . The Commissioner is also able to remit some or all of the penalty if the Commissioner is satisfied that it is fair and reasonable to do so [clause 38] .
6.18 The production of a notice of assessment of penalty is conclusive evidence that the assessment was properly made, except in proceedings for the review of the penalty assessment. [Clause 40]
Relationship with offence provisions
6.19 None of the conduct covered by this Part can be considered to be an offence, however, some conduct could constitute an offence under other Parts. [Clause 41]
Chapter 7 - Information gathering and access powers
Outline of Chapter
7.1 This Chapter explains the information gathering and access powers necessary to support a system of self-assessed grants and benefits. These provisions are contained in Parts 9 and 11 respectively.
7.2 These provisions are identical to those in other Acts administered by the Commissioner. Such powers are exercised selectively in assuring compliance with laws governing entitlements and liabilities. They may be exercised in cases where an entity does not consent to a routine enquiry to verify their entitlement to a grant or benefit, or where a third party holds information that is subject to a confidentiality arrangement.
Detailed explanation of Parts 9 and 11
Commissioner may obtain information and documents
7.3 If the Commissioner has reason to believe that a person has information and is capable of giving evidence to the Commissioner that is relevant to the operation of a grants or benefits scheme, the Commissioner will have the power to compel the person to provide information. [Subclause 42(1)]
7.4 The Commissioner will have the power, after giving written notice to a person, to require the person to:
- •
- provide such information in the manner and form as the Commissioner specifies in the notice;
- •
- attend and give evidence; and
- •
- produce documents in the custody or control of the person.
The Commissioner will be able to require information or answers to be given orally or in writing. [Subclause 42(2)]
7.5 Scales for the reimbursement of expenses for persons required to attend before the Commissioner are to be provided for in regulations. [Subclause 42(3)]
7.6 An individual will not be able to refuse to give information or evidence to the Commissioner on the grounds that providing that information or evidence may incriminate the individual or expose them to a penalty. However, such information or evidence cannot be used against the individual in criminal proceedings except where those proceedings relate to failure to comply with requirements under a law administered by the Commissioner. [Clause 43]
Retention and copying of documents
7.7 The Commissioner may inspect the documents, make and retain copies of those documents or take and retain extracts from documents. [Clause 44]
7.8 The Commissioner is also entitled to take possession of the documents. The person who was otherwise entitled to possession of the documents can obtain a certified copy of the documents from the Commissioner. The Commissioner must permit the person to inspect and make copies or extracts from the documents until the Commissioner provides the person with certified copies of the documents. [Clause 45]
7.9 The Crown in the right of the Commonwealth is bound by the provisions in Part 9 but cannot be prosecuted for an offence [subclause 46(1)] . This provision has effect in addition to clause 4 (about States and Territories being bound by this Bill) [subclause 46(2)] .
7.10 An authorised officer will be entitled to access premises where that officer has reason to believe that there are documents, goods or any other property that is relevant to the operation of this Bill or an entitlement Act. [Subclause 48(1)]
7.11 An authorised officer must be given entry at any reasonable time to land or premises. Authorised officers must also be given full access to documents, goods or other property at all reasonable times. They must be allowed to inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property and take samples from them. [Subclause 48(2)]
7.12 The occupier of the land or premises will be obliged to provide the officer seeking access with reasonable facilities and assistance [subclause 48(4)] . For example, an authorised officer will be entitled to reasonable use of photocopying, telephone, fax and light and power facilities, and of work space and facilities to extract relevant information stored on computer. In addition, the officer will be entitled to reasonable assistance, for example, in the form of advice as to where relevant documents are located and access to areas where such documents are located.
7.13 If reasonable facilities and assistance are not provided, the occupier will be guilty of an offence with a maximum penalty of 10 penalty units. [Subclause 48(5)]
7.14 An officer will not be entitled to remain on land or premises if they fail to produce their identity card when requested. [Subclause 48(3)]
7.15The Commissioner must issue an identity card to an officer authorised to have access to premises for the purposes of this Bill or an entitlement Act. The identity card must be in the form prescribed by the regulations and must contain a recent photograph of the authorised officer. An authorised officer must carry their identity card at all times when performing the functions of an authorised officer under this Bill or an entitlement Act. [Subclauses 49(1), (2), (3) and (5)]
7.16 A person is guilty of an offence with a penalty of 1 penalty unit if they fail to immediately return their identity card once they cease to be an authorised officer. [Subclause 49(4)]
7.17 The Crown in the right of the Commonwealth is also bound by these access provisions but it cannot be prosecuted for an offence. [Clause 50]
Chapter 8 - Protection of confidentiality of information
Outline of Chapter
8.1 This Chapter explains the provisions dealing with the confidentiality of personal information disclosed in relation to a grants or benefits scheme and obtained by a person in the course of official employment.
8.2 These provisions are in Part 10 of the PGBA Bill and are consistent with secrecy provisions in other Acts administered by the Commissioner.
Detailed explanation of Part 10
8.3 The dissemination of information obtained for the purpose of an Act relating to a grants or benefits scheme will be restricted. [Clause 47]
8.4 An obligation of secrecy will be imposed on persons (Commonwealth appointees, employees or delegates) who, in the course of their duties relating to the administration of this Bill or an entitlement Act, acquire information about the affairs of another person. A person who holds protected information or documents obtained in the course of 'official employment' (an 'entrusted person') will be prohibited from making a record of the information or disclosing it to anyone else, except in specified circumstances. The penalty for a breach of this prohibition is imprisonment for 2 years. [Subclause 47(2)]
8.5 An entrusted person will, in certain limited circumstances, be able to record or disclose protected information or documents if:
- •
- the recording or disclosure is for the purposes of this Bill or an entitlement Act;
- •
- it happens in the course of official employment;
- •
- the person is the Commissioner or Deputy Commissioner of Taxation and the disclosure is to:
- -
- the Australian Statistician for the purposes of the Census and Statistics Act 1905;
- -
- another person carrying out functions under a taxation law (which includes this Bill and entitlement Acts); or
- -
- the Administrative Appeals Tribunal in proceedings under a taxation law; and
- •
- the person making the disclosure has been authorised by the Commissioner, Deputy Commissioner or Secretary to disclose the information and the disclosure is to another person carrying out functions under a taxation law administered by the Commissioner or to the Australian Statistician for the purposes of the Census and Statistics Act 1905. [Subclause 47(3)]
8.6 There will be no circumstances in which a disclosure of protected information or documents can be made to a Minister. [Subclause 47(4)]
Chapter 9 - Rules for certain entities
Outline of Chapter
9.1 This Chapter explains the special rules that apply to partnerships and unincorporated associations or bodies of persons. These rules are in Part 12 of the PGBA Bill.
9.2 The effect of these rules is to impose separate obligations on certain entities if other entities have obligations under this Bill or the TAA1953.
Detailed explanation of Part 12
9.3 An entity for the purposes of this Bill and the TAA 1953 includes partnerships and unincorporated associations or bodies of persons [clause 5 definition of entity] . This definition draws on the definition of 'entity' in section 37 of the A New Tax System (Australian Business Number) Act 1999.
Treatment of partners in a partnership
9.4 This Bill, entitlement Acts and the TAA 1953 will apply to partnerships as if it were a person, but with the following changes [subclauses 51 (1) and (6)]:
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- because a partnership is not a separate legal person, obligations imposed by this Bill, an entitlement Act or the TAA 1953 on a partnership are imposed on each partner, but may be discharged by any of the partners [subclause 51(2)] ;
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- partners will be jointly and severally liable to pay amounts payable by the partnership [subclause 51(3)] ;
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- any offences committed by the partnership will be taken to have been committed by each partner who aided, abetted, counselled or procured the relevant act or omission or was knowingly concerned or a party to that act or omission [subclause 51(4)] ; and
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- a change in the composition of the partnership does not affect the continuity of the partnership [subclause 51(5)] .
Treatment of unincorporated associations
9.5 This Bill, entitlement Acts and the TAA 1953 will apply to an unincorporated association as if it were a person, but with the following changes [subclauses 52(1) and (4)]:
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- obligations that would be imposed on an unincorporated association or body of persons are imposed on each member of the committee of management of that association or body, but may be discharged by any of those members [subclause 52(2)] ; and
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- any offences committed by the association or body will be taken to have been committed by each member of its committee of management who aided, abetted, counselled or procured the relevant act or omission or was knowingly concerned or a party to that act or omission [subclause 52(3)] .
Chapter 10 - Miscellaneous
Outline of Chapter
10.1 This Chapter explains a number of miscellaneous provisions, including those that relate to the application of provisions of other Acts to those in the PGBA Bill or an entitlement Act. A regulation making power is also provided for. These provisions are contained in Part 13 of the PGBA Bill.
Detailed explanation of Part 13
Reviewable grant and benefit decisions
10.2 If you are dissatisfied with a decision of a certain kind made in relation to a grant or benefit scheme you can challenge it by using existing review mechanisms in the TAA 1953. You can object against the decision and, ultimately, request a review or appeal against it in the manner provided for in Part IVC of the TAA 1953. [Subclause 53(1)]
10.3 Decisions of this kind are 'reviewable grant or benefit decisions' and include decisions to:
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- refuse an application for registration;
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- cancel registration;
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- make an assessment of the amount of a grant or benefit;
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- amend an assessment of the amount of a grant or benefit;
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- make an assessment of the amount of a penalty;
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- amend an assessment of an amount of penalty;
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- make an assessment where there is a trustee of a deceased estate; and
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- amend an assessment where there is a trustee of a deceased estate.
Application of the Criminal Code
10.4 The Criminal Code is expressly stated to apply to all offences provided for in the PGBA Bill. [Clause 54]
10.5 Grants and benefits must be paid from the Consolidated Revenue Fund. An appropriation of that Fund for that purpose is provided for. [Clause 55]
Income tax treatment of grants and benefits
10.6 A grant or benefit is taken to be a subsidy for the purposes of section 15-10 of the ITAA 1997. This ensures that the recipient of a grant or benefit must include the amount of the grant or benefit in their assessable income for income tax purposes. [Clause 56]
10.7 For the purposes of this Bill the address to which the Commissioner will deliver or send notices or other documents is:
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- the address shown on the Australian Business Register (if the entity is registered on it);
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- the address last notified to the Commissioner in any claim, application or other document under this Bill or an entitlement Act; or
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- any other address the Commissioner reasonably believes to be the entity's address for service.
10.8 Notices or other documents may be served by posting them to the address you have notified to the Commissioner [subclause 57(2)] . However, the Commissioner may serve them by electronic transmission if the entity has claimed the grant or benefit electronically and has notified the Commissioner of an address for receipt by way of electronic transmission [subclause 57(3)] .
Service of documents if entity absent from Australia or cannot be found
10.9 If a document needs to be served on an entity in respect of any proceeding to recover a scheme debt and the Commissioner is satisfied (after reasonable enquiries) that:
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- the entity is absent from Australia and does not have any agent in Australia on whom the document can be served; or
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- the entity cannot be found; then
the Commissioner may, without the court's leave, serve the document on the entity by posting it, or a sealed copy of it, to the entity at the entity's Australian address (including the entity's Australian place of business or residence) that is last known to the Commissioner. [Clause 58]
10.10 References to an authorised officer performing functions under this Bill are taken to be references to an APS employee whom the Commissioner has authorised, in writing, to be an authorised officer for that purpose. [Clause 59]
10.11 The Governor-General may make regulations necessary or convenient to the operations of this Bill or for giving effect to its provisions. Regulations may also be made prescribing matters required or permitted by this Bill. This provision confers the requisite authority for such regulations. [Clause 60]
Chapter 11 - Amendment of the Taxation Administration Act 1953
Outline of Chapter
11.1 This Chapter explains the consequential amendments to the TAA 1953 to be made by Schedule 1 to the Fuel Sales Grants (Consequential Amendments) Bill 2000.
11.2 The provisions of the TAA 1953 will ordinarily be attracted to the operation of grant and benefit schemes such as the fuel sales grants scheme because both the FSG Bill and the PGBA Bill provide for their general administration by the Commissioner.
Detailed explanation of amendments
11.3 Unpaid debts under a law administered by the Commissioner are subject to a GIC under Division 1 of Part IIA of the TAA 1953. The GIC will apply to outstanding amounts of scheme debts under the PGBA Bill.
11.4 A reference to the provision of the PGBA Bill that subjects scheme debts to GIC liability will be inserted in the table of Liability to the charge under other Acts in subsection 8AAB(5) of the TAA 1953. [Item 1, subsection 8AAB(5), new item 4A of the table]
11.5 The provisions in Part III of the TAA 1953 dealing with prosecutions and offences will ordinarily apply to grants and benefits schemes as a consequence of the PGBA Bill and entitlement Acts being within the meaning of'taxationlaw' in section 2 of the TAA 1953.
11.6 The definition of the term 'taxation statement', a term used in the description of certain offences for false or misleading statements, will be modified. The amended definition will exclude statements made in a document produced as a result of the exercise of the power proposed by section 42 of the PGBA Bill. That section confers a power to direct that information in the custody or control of a person be given to the Commissioner. [Item 2, new paragraph 8J(2)(mb)]
11.7 The provision that permits a court to order the payment of an amount in addition to a penalty relating to an offence against the Diesel and Alternative Fuel Grants Scheme Act 1999 will be amended so that it also applies if the offence is against the PGBA Bill or an entitlement Act. [Items 3 to 6, amendments to section 8W]
11.8 Standardised rules which enable the Commissioner to collect and recover liabilities that arise under the laws for which the Commissioner has the general administration and that are unpaid after they become due and payable are contained in Part 4-15 of Schedule 1 to the TAA 1953.
11.9 References will be inserted in the table of 'tax-related liabilities' to attract the operation of those standardised rules to debts arising under the PGBA Bill. [Item 7, subsection 250-10(2), new items 46 to 48 of the table]
Application
11.10 The Fuel Sales Grants (Consequential Amendments) Bill 2000 commences at the same time as the FSG Bill is enacted. The amendments to the TAA 1953 will take effect from that time.