House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

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

Information gathering

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)]

Self-incrimination

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]

Commonwealth bound by Part 9

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)] .

Access to premises

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)]

Identity cards

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]