House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon. Josh Frydenberg MP)

Chapter 1 - Extending the operation of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020

Outline of chapter

1.1 Schedule 1 to the Bill extends the period over which the Government can make payments authorised by the Act. This change facilitates the JobKeeper scheme being extended to 28 March 2021.

1.2 Schedule 1 also amends the tax secrecy provisions in the TAA to allow protected information relating to the JobKeeper scheme to be disclosed to an Australian government agency for the purposes of the administration of an Australian law. Such disclosures can only be made for a purpose relating to the Coronavirus.

1.3 All legislative references in this Chapter are to the Act unless otherwise stated.

Context of amendments

Extension to the JobKeeper scheme

1.4 On 21 July 2020, the Government announced that the JobKeeper scheme would be extended to 28 March 2021.

1.5 The JobKeeper scheme is implemented through the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020. Those rules, and the related payments under the JobKeeper scheme, are authorised by the Act, which was enacted to provide financial support to business and not-for-profits directly or indirectly affected by the Coronavirus.

1.6 In particular, section 7 authorises rules being made in relation to one or more kinds of payments by the Commonwealth in respect of a time that occurs during the 'prescribed period', and the establishment of a scheme providing for matters relating to one or more such payments and matters relating to such a scheme. The Treasurer is authorised to make rules prescribing such matters under subsection 20(1).

1.7 The term 'prescribed period' is defined in section 6 as the period between 1 March 2020 and 31 December 2020. This imposes a time limit on any payments made under the Act through the related rules.

Amendments to the tax secrecy provisions

1.8 Section 355-25 of Schedule 1 to the TAA makes it an offence for a taxation officer to make a record of, or disclose, protected information. Protected information is generally information that relates to the affairs of an entity and identifies, or is reasonably capable of being used to identify, that entity, where that information was disclosed or obtained under or for the purposes of a taxation law.

1.9 An exception to the offence is contained in section 355-65 of Schedule 1 to the TAA. That section permits a taxation officer to make a disclosure of protected information if an item in a table in the section covers the making of the disclosure.

1.10 Existing circumstances in which disclosure is permitted include disclosures to an Australian government agency that are necessary for the purpose of preventing or lessening a serious threat to an individual's life, health or safety, or a serious threat to public health or public safety.

Summary of new law

1.11 Schedule 1 to the Bill extends the period over which the Government can make payments authorised by the Act. The extended period will now end on 28 March 2021 instead of 31 December 2020. This change facilitates the JobKeeper scheme being extended to 28 March 2021.

1.12 Schedule 1 to the Bill also extends the circumstances in which protected information can be disclosed. As a result of these changes, a taxation officer is permitted to disclose protected information to an Australian government agency for the purposes of the administration of an Australian law. Such disclosures can only be made for a purpose relating to the Coronavirus.

Comparison of key features of new law and current law

Detailed explanation of new law

Extension to the JobKeeper scheme

1.13 The amendments update the definition of 'prescribed period' in section 6 so that it ends on 28 March 2021 instead of 31 December 2020. [Schedule 1, item 1, definition of 'prescribed period' in section 6]

1.14 As section 7 authorises payments by the Commonwealth in respect of a time that occurs during the 'prescribed period', the amendments ensure that such payments can be made in relation to a time that occurs from 1 March 2020 to 28 March 2021 (inclusive).

1.15 The JobKeeper scheme was established through the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020. The amendments facilitate amendments to those rules to extend the operation of the JobKeeper scheme to 28 March 2021.

Amendments to the tax secrecy provisions

1.16 Schedule 1 to the Bill inserts a new item in the table in subsection 355-65(8) of Schedule 1 to the TAA to include additional circumstances in which protected information can be disclosed by a taxation officer without the offence in section 355-25 applying.

1.17 This new item permits disclosures to an Australian government agency for the purposes of the administration of an Australian law. Such disclosures can only be made for a purpose relating to the Coronavirus. [Schedule 1, item 4, table item 10A in the table in subsection 355-65(8) of Schedule 1 to the TAA]

1.18 The terms 'Australian government agency' and 'Australian law' are defined terms in subsection 995-1(1) of the ITAA 1997 and take their meaning from the ITAA 1997 because of subsection 3AA(2(2) of the TAA. An 'Australian government agency' includes the Commonwealth, a State or Territory, as well as any of their 'authorities'. The term 'Australian law' means a law of the Commonwealth, a State law or a Territory law.

1.19 These amendments facilitate information sharing at the request of a State or Territory agency, and allow the Commonwealth to further assist State and Territory governments to respond to the ongoing coronavirus pandemic and associated economic impacts of public health measures.

1.20 The requirement that the information be disclosed for the purposes of administering a law ensures that the disclosure is only made for authorised purposes (including a purpose authorised under State law). Such disclosures cannot be made for any purpose - they must be for a purpose that relates to the Coronavirus. This ensures that the new exception is rationally connected and proportionate to the objective of assisting other agencies administer programs relating to the Coronavirus.

1.21 Consistent with other exceptions to the tax secrecy offence in section 355-25, a defendant bears the evidential burden in relation to establishing that the exception applies. The reversal of the burden of proof is consistent with the Attorney-General's Department's A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 edition.

1.22 It is appropriate that the evidential burden be reversed in this situation. Matters relating to the disclosure of protected information and for which purposes (such as what information is being disclosed and for what purpose the disclosure is being made) are peculiarly within the knowledge of the person making the disclosure and can be raised in making their defence. It would be significantly more difficult and costly for the prosecution to prove the purpose for which a disclosure is made.

Consequential amendments

1.23 The amendments also extend the period over which the Social Services Minister may make related determinations to modify Part 5 of the Social Security (Administration) Act 1999. Under the extended period, the Minister can make such determinations in relation to a period ending on 28 March 2021, instead of 31 December 2020. [Schedule 1, item 2, subitem 28(4) of Schedule 2 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020]

1.24 These determinations allow information to be required to be given to the Department of Social Services for compliance checks in relation to a payment made under the Act (which includes payments made under the JobKeeper scheme).

1.25 It is appropriate that the period in relation to which such determinations can be made be extended to maintain consistency with the period over which the related payments can be made.

1.26 The amendments also update the related automatic sunsetting and repeal provisions for such determinations, and the authorising provision in Schedule 2 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020. [Schedule 1, item 2, subitem 28(5) of Schedule 2 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020]

Application and transitional provisions

1.27 The amendments in Schedule 1 to the Bill commence from the day of Royal Assent.

1.28 The amendments to expand the circumstances in which protected information can be disclosed by a taxation officer apply in relation to records and disclosures of information that are made after Schedule 1 commences, whether the information was obtained before, on or after commencement. [Schedule 1, item 5]