House of Representatives

Explanatory Memorandum

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

Chapter 3 - Statement of Compatibility with Human Rights

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

Schedule 1 - Tax-free treatment of certain small business grants relating to the coronavirus recovery

3.1 Schedule 1 to the 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

3.2 Schedule 1 to the Bill amends the income tax law to extend the concessional tax treatment of payments received by eligible businesses under eligible COVID-19 recovery grant programs administered by a State or Territory Government (or a State or Territory authority).

Human rights implications

3.3 Schedule 1 to the Bill does not engage any of the applicable rights or freedoms.

Conclusion

3.4 Schedule 1 to the Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 2 - COVID-19 Disaster Payment: disclosure of tax information to Services Australia

3.5 Schedule 2 to the 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

3.6 Schedule 2 to the Bill makes amendments to subsection 355-65(8) of Schedule 1 to the Taxation Administration Act 1953 to include an additional purpose for which protected information can be disclosed, and to whom.

3.7 A taxation officer will be permitted to disclose protected information to the Chief Executive Officer of Services Australia for the purposes of administering the COVID-19 Disaster Payment.

Human rights implications

3.8 The amendments made by Schedule 2 to the Bill engage:

•

the right to be presumed innocent until proven guilty according to the law in Article 14(2) of the International Covenant on Civil and Political Rights; and

•

the prohibition on arbitrary or unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights.

3.9 The amendments made by Schedule 2 to the Bill engage Article 14(2) of the International Covenant on Civil and Political Rights as the amendments provide for an exception to the prohibition of a taxation officer disclosing protected information. The prohibition is a criminal offence. A taxation officer wishing to rely on the exception bears the evidential burden in relation to the matters.

3.10 It is appropriate that the evidential burden be reversed in this situation as matters relating to the disclosure 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 disprove these facts.

3.11 The amendments made by Schedule 2 to the Bill are compatible with Article 17 of the International Covenant on Civil and Political Rights as its engagement will neither be unlawful or arbitrary.

3.12 In order for an interference with the right to privacy to be permissible, the interference must:

•

be authorised by law;

•

be for a reason consistent with the International Covenant on Civil and Political Rights; and

•

be reasonable in the particular circumstances.

3.13 The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

3.14 The amendments are not arbitrary as they are aimed at a legitimate objective and are reasonable and proportionate in achieving that objective.

3.15 The COVID-19 pandemic has required quick, efficient and effective responses to deal with its economic impacts.

3.16 The amendments are reasonable and proportionate in achieving this objective as they only allow the disclosure information about the affairs of an entity held by the Commissioner of Taxation to the Chief Executive Officer of Services Australia for the purpose of administering the COVID-19 Disaster Payment and the information will be subject to strict privacy and confidentiality safeguards.

Conclusion

3.17 Schedule 2 to the Bill is compatible with human rights as it does not limit any applicable human rights or freedoms.