House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Scott Morrison MP and the Assistant Minister for Immigration and Border Protection the Hon Alex Hawke MP)

Chapter 2 Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Income Tax Rates Amendment (Working Holiday Maker Reform) Bill 2016

2.1 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

2.2 This Bill applies a 19 per cent income tax rate to assessable income derived by working holiday makers on amounts up to $37,000, with ordinary income tax rates applying for income exceeding this amount.

Human rights implications

2.3 This Bill does not engage any of the applicable rights or freedoms.

Conclusion

2.4 This Bill is compatible with human rights as it does not raise any human rights issues.

Treasury Laws Amendment (Working Holiday Maker Reform) Bill 2016

2.5 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

2.6 This Bill:

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helps protect working holiday makers from unfair employment arrangements by allowing the Commissioner to disclose information that is relevant to ensuring an entity's compliance with the Fair Work Act 2009 to the Fair Work Ombudsman;

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requires the Commissioner to give the Treasurer, for presentation to the Parliament, a report on working holiday makers, which includes statistics and aggregated information derived from the register;

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requires employers of working holiday makers to register with the Commissioner, which allows them to withhold tax at 19 per cent in respect of working holiday makers; and

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reduces the working holiday maker visa application charge from $440 to $390.

Human rights implications

Disclosure of information to the Fair Work Ombudsman

2.7 Certain amendments made by Schedule 4 of this Bill engage the prohibition on arbitrary or unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights.

2.8 The Schedule contains amendments that broaden the Australian Taxation Office's (ATO) powers to disclose protected information to the Fair Work Ombudsman for the purpose of ensuring an entity's compliance with the Fair Work Act 2009.

2.9 The amendments are compatible with the prohibition, as they are not arbitrary or unlawful. In addition, they are aimed at a legitimate objective and constitute an effective and proportionate means of achieving that objective.

2.10 The United Nations Human Rights Committee has stated, in their General Comment Number 16, that:

'unlawful means that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which must itself comply with the provisions, aims and objectives of the Covenant [the International Covenant on Civil and Political Rights]'; and

'the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances'. ^[1]

2.11 The objectives of these amendments are to improve the Fair Work Ombudsman's ability to enforce compliance with the Fair Work Act 2009.

2.12 The Fair Work Act 2009 provides an important framework for workplace relations in Australia, which includes establishing minimum employment conditions for employees. One of the Fair Work Ombudsman's key functions is to promote harmonious and cooperative workplace relations and compliance with the Fair Work Act 2009 through education, assistance and advice and, where necessary, undertaking enforcement activities, such as investigation, issuing compliance notices and initiating court proceedings. By enhancing the Fair Work Ombudsman's ability to enforce compliance with the Fair Work Act 2009, these amendments are aimed at a legitimate objective.

2.13 In Australia, the main protection for taxpayer confidentiality is provided by a general prohibition on the disclosure of taxpayer protected information by ATO officers (see Division 355 of Schedule 1 to the TAA 1953). The ATO has an exception to this general prohibition for certain records or disclosures to the Fair Work Ombudsman. Currently, the ATO can only disclose to the Fair Work Ombudsman the fact of an entity's actual or reasonably suspected non-compliance with a taxation law and the disclosure must be for the purpose of ensuring the entity's compliance with the Fair Work Act 2009 (refer table item 5 in subsection 355-65(8) of Schedule 1 to the Taxation Administration Act 1953).

2.14 These amendments broaden this exception to ensure that the ATO can provide records or make disclosures to the Fair Work Ombudsman for the purpose of ensuring an entity's compliance with the Fair Work Act 2009. The amendments constitute an effective and proportionate means of achieving these objectives, as the relevant records or disclosures are limited to this purpose.

Data collected as part of registration process

2.15 As part of the registration process, an employer may be required to provide information to the Commissioner relating to their employment of working holiday makers. These amendments may engage the prohibition on arbitrary or unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights to the extent that the amendments allow the collection of protected information relating to natural persons. The data will not be made public but may be reflected in the Commissioner's reports to Parliament. However, any data reflected in the Commissioner's report will not identify particular individuals.

2.16 These amendments are aimed at a legitimate objective of improving the government's ability to monitor trends, recognise the benefits that working holiday makers bring to Australia, and take these into account in government decision making. The Commissioner also has safeguards in place to ensure that any protected information that is collected will be held securely. To the extent this limits the right to privacy for individuals, the limitation is reasonable, necessary and proportionate to a legitimate objective

Requiring employers of working holiday makers to register

2.17 Article 6 of the International Covenant on Economic, Social and Cultural Rights provides for the right to work. This specifically provides that: The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2.18 The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Article 6 includes elements of availability, accessibility, acceptability and quality of work. It is both an individual and a collective right and implies a right not to be unfairly deprived of employment. ^[2] While not legally binding, the views of United Nation treaty bodies (committees) provide guidance to State parties on the interpretation of obligations under a treaty and, in Australia's view, should be considered in good faith.

2.19 Article 7 of International Covenant on Economic, Social and Cultural Rights provides for just and favourable conditions of work. The right to just and favourable conditions of work encompasses a number of elements, including, inter alia, remuneration which provides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind; and safe and healthy working conditions.

2.20 The Bill may limit the right to work if, for example, it has the unintended effect of dissuading employers from employing working holiday makers because they now need to register as working holiday maker employers with the Commissioner. To the extent this limits the right to work for workers, the limitation is reasonable, necessary and proportionate to a legitimate objective.

2.21 The impost on the employer of registration is justifiable and reasonable, especially when taking the benefit of that registration and promoting the right of work for holiday makers into account. Registration for the employer will generally be a simple, once-off obligation, to be undertaken at the time that an employer first employs working holiday makers. The legitimate objective of the registration requirement is to enhance the protection available to working holiday makers from employers who breach provisions of the Fair Work Act 2009 by ensuring that such employers are readily available and can be better monitored to ensure that they comply with their obligations.

Remaining provisions of this Bill

2.22 The remaining provisions of this Bill do not engage human rights.

Conclusion

2.23 The new information disclosure requirements are consistent with Article 17 of the International Covenant on Civil and Political Rights on the basis that its engagement of the right to privacy will neither be unlawful (including by reason of these amendments) nor arbitrary. To this extent, the Bill complies with the provisions, aims and objectives of the International Covenant on Civil and Political Rights.

2.24 The employer registration requirement is consistent with Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights because it is reasonable, necessary and proportionate to a legitimate objective of enhancing protections for working holiday makers from employers who breach provisions of the Fair Work Act 2009. To this extent, the Bill complies with the provisions, aims and objectives of the International Covenant on Economic, Social and Cultural Rights.

Superannuation (Departing Australia Superannuation Payments Tax) Amendment Bill 2016

2.25 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

2.26 This Bill increases the rate of the departing Australia superannuation payments tax to 95 per cent for working holiday makers.

Human rights implications

2.27 This Bill does not engage any of the applicable rights or freedoms.

Conclusion

2.28 This Bill is compatible with human rights as it does not raise any human rights issues.

Passenger Movement Charge Amendment Bill 2016

2.29 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

2.30 This Bill increases the passenger movement charge from $55 to $60.

Human rights implications

2.31 This Bill does not engage any of the applicable rights or freedoms.

Conclusion

2.32 This Bill is compatible with human rights as it does not raise any human rights issues.