House of Representatives

Explanatory Memorandum

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

Chapter 6 - Statement of Compatibility with Human Rights

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

Schedule 1 - Amendments relating to Coronavirus economic response payments

6.1 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

6.2 Schedule 1 to the Bill amends the Payments and Benefits Act to allow the Treasurer to make rules for a kind of Coronavirus economic response payment to an entity where the payment is to provide support to the entity because it has been adversely affected by restrictions imposed by a State or Territory public health order that is directed at controlling the transmission of COVID-19.

Human rights implications

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

Conclusion

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

Schedule 2 - Disclosure of tax information to Australian government agencies to facilitate COVID-19 business support programs

6.5 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

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

6.7 A taxation officer will be permitted to disclose protected information to an Australian government agency for the purposes of administering a COVID-19 business support program. The Privacy (Tax File Number) Rule 2015 continues to apply to information provided to Australian government agencies under this amendment. This regulates the collection, storage, use, disclosure, security and disposal of an individual's tax file number information, that may be provided as part of protected information to an Australian government agency administering a business support program.

6.8 Protected information is information disclosed or obtained under a taxation law as defined in section 355-30 of the TAA 1953. An Australian government agency is a Commonwealth, State or Territory (or a Commonwealth, State or Territory authority) as defined in section 995-1(1) of the ITAA 1997.

6.9 The disclosure of protected information ensures that Australian government agencies can address the needs of businesses more efficiently and effectively and reduces the risk of businesses receiving inadequate or inappropriate support.

Human rights implications

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

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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

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

6.11 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.

6.12 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.

6.13 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.

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

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be authorised by law;

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

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be reasonable in the particular circumstances.

6.15 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.

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

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

6.18 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 an Australian government agency for the purpose of administering the COVID-19 business support program and the information will be subject to strict privacy and confidentiality safeguards.

Conclusion

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

Schedule 3 - Tax-free treatment of payments from COVID-19 business support programs

6.20 Schedule 3 to the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in sections 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

6.21 Schedule 3 to the Bill makes amendments to the income tax law to make payments received by eligible businesses under certain COVID-19 business support programs administered by the Commonwealth non-assessable non-exempt income so that the payments are not subject to income tax.

6.22 To obtain concessional treatment, among other things, the payment must be made under a program that is declared by the Minister. Schedule 3 to the Bill gives the Minister power to declare programs.

Human rights implications

6.23 Schedule 3 to the Bill does not engage any of the applicable rights or freedoms.

Conclusion

6.24 Schedule 3 to the Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 4 - Modification power

6.25 Schedule 4 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

6.26 Schedule 4 to the Bill amends Schedule 5 to the Coronavirus (Measures No. 2) Act to provide a temporary mechanism to change arrangements for meeting information and documentary requirements under Commonwealth legislation, in response to circumstances relating to COVID-19. In particular, social distancing measures are expected to cause difficulties with meeting information and documentary requirements, including signature, witnessing and production of documents.

6.27 Under this mechanism, a responsible Minister may determine that provisions in Commonwealth legislation containing particular information or documentary requirements are varied, do not apply or that another provision specified in the determination applies, for a specified time period. The mechanism must not be exercised by a responsible Minister unless the Minister is satisfied that the determination is in response to circumstances relating to COVID-19.

6.28 The mechanism is temporary and will be repealed at the end of 31 December 2022. Any determination made under the mechanism will also cease to operate at the end of 31 December 2022.

Human rights implications

6.29 Schedule 4 to the Bill does not engage any of the applicable rights or freedoms.

6.30 Each instrument made under the power provided for in Schedule 5 to the Coronavirus (Measures No. 2) Act, amended by Schedule 4 to the Bill, will be disallowable and will include a human rights compatibility statement assessing the impact of the instrument on human rights and freedoms.

Conclusion

6.31 Schedule 4 to the Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 5 - Tax-free treatment of COVID-19 disaster payments

6.32 Schedule 5 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

6.33 Schedule 5 amends the income tax law to make Commonwealth COVID-19 Disaster Payments to individuals non-assessable non-exempt income so that the payments are not subject to income tax.

Human rights implications

6.34 Schedule 5 does not engage any of the applicable rights or freedoms.

Conclusion

6.35 Schedule 5 is compatible with human rights as it does not raise any human rights issues.