House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Treasurer, Minister for Housing and Minister for Homelessness, Social and Community Housing, the Hon Michael Sukkar MP)

Chapter 4 - Statement of Compatibility with Human Rights

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

Schedule 1 - Australian Screen Production Incentive Reforms

4.1 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

4.2 Schedule 1 makes amendments to Division 376 of the ITAA 1997 to increase the producer offset for films that are not feature films released in cinemas to 30 per cent of total qualifying Australian production expenditure, and to make various threshold and integrity amendments across the three screen tax offsets.

Human rights implications

4.3 This Schedule does not engage any of the applicable rights or freedoms.

Conclusion

4.4 This Schedule is compatible with human rights as it does not raise any human rights issues.

Schedule 2 - Consequential and transitional matters arising from corporate insolvency reforms

4.5 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

4.6 Schedule 2 makes consequential amendments to integrate the corporate insolvency reforms across the Commonwealth statute book.

4.7 These amendments come under the following categories:

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Clarifying eligibility to participate in the debt restructuring and simplified liquidation processes

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Updates concerning the role of the restructuring practitioner

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Updating Commonwealth legislation to add debt restructuring as a type of external administration

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Integrating debt restructuring and simplified liquidation into the special administration process for Aboriginal and Torres Strait Islander corporations

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Other technical amendments which provide clarity to the corporate insolvency regime

Human rights implications

Reversal of evidential burden of proof

4.8 Schedule 2 to the Bill engages the right to a fair trial in Article 14(2) of the ICCPR.

4.9 Subsection 496-10(1) of the CATSI Act prohibits an officer of the Aboriginal and Torres Strait Islander corporation from performing or exercising a power or function as an officer during a special administration. An exception to this is where a person performs or exercises a function or power as a small business restructuring practitioner for a restructuring plan (in new subsection 496-10(2A)). A person who wishes to rely on the exception contained in subsection 496-10(2A) bears the evidential burden of proving the exception.

4.10 Under subsection 13.3(3) of the Criminal Code Act 1995 a defendant who wishes to rely on any exception, provided by the law creating an offence, bears an evidential burden in relation to that matter; the exception need not accompany the description of the offence. The reversal of the evidential burden is acceptable in this instance as it is limited to reliance on the codified exception, and not the proving of innocence in and of itself.

4.11 Accordingly, to the extent that Schedule 2 to the Bill engages the rights under Article 14 of the ICCPR, it is compatible with human rights as the limitations are appropriate and proportionate.

Conclusion

4.12 Schedule 2 to the Bill is compatible with human rights because the reverse burden of proof is limited to the exception in new subsection 496-10(2A) of the CATSI Act and not the offence provision (subsection 496-10(1)), and therefore is consistent with article 14(2) of the ICCPR. To the extent that Schedule 2 to the Bill may limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 3 - Miscellaneous and technical amendments

4.13 This Schedule 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

4.14 Schedule 3 to the Bill makes a number of miscellaneous and technical amendments to various laws in the Treasury portfolio. These amendments are part of the Government's ongoing commitment to the care and maintenance of Treasury portfolio legislation.

4.15 These amendments make minor and technical changes to correct typographical and number errors, repeal inoperative provisions, remove administrative inefficiencies, address unintended outcomes, and ensure that the law gives effect to the original policy intent.

Human rights implications

4.16 Schedule 3 to the Bill engages the following human rights and freedoms:

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the right to justice under Article 14 of the International Covenant on Civil and Political Rights (ICCPR);

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the right to protection from arbitrary or unlawful interference with privacy under Article 17 of the ICCPR; and

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the right for person's with disabilities to have access to transport, information, communications and other public facilities under Article 9 of the Convention of the Rights of Persons with Disabilities.

Right to a fair and public hearing and right to appeal

4.17 The power of the Treasurer to extend the decision period engages the right to justice under Article 14 of the ICCPR because the Treasurer is not required to consult with the affected person before deciding to extent the decision period, the decision to extend the decision period is not subject to merits review and the decision making process is not subject to the natural justice hearing rule. Previously the Treasurer was required to make a decision before the end of a period prescribed by regulations (currently 30 days) or before the end of that period, the person requests in writing that the treasurer extends the period.

4.18 The amendments clarify that the decision period can also be extended if, the Treasurer extends the decision period using a new power to extend the decision period up to 90 days.

4.19 The total period by which the Treasurer can extend the decision period is 90 days. However, multiple extensions may be made to reach the maximum 90 days.

4.20 The rules of natural justice are expressly excluded when making a decision on the extension. Article 14 of the ICCPR states that all persons are entitled for a fair and public hearing in the determination of their legal rights and obligations.

4.21 In this case, excluding the rules of natural justice in making an extension decision are appropriate and proportionate in light of the role the foreign investment framework plays in protecting Australia's national interest, including Australia's national security. The ability to extend a decision period allows the Treasurer sufficient time to determine whether the relevant action being considered is contrary to the national interest.

4.22 Removing the rules of natural justice facilitates the processing of sensitive or significant exemption certificate applications by allowing the time necessary for the Treasurer to consider all input that informs these exemption certificate applications. In some cases, a longer decision period may be required to allow consultation partners sufficient time to provide their input including where they are developing bespoke conditions. It deters unnecessary challenges to an interim decision that does not fundamentally affect a person's rights.

4.23 While the Treasurer is not required to consult with a person before extending the decision period, the person will still be afforded natural justice and other review mechanisms as part of the substantive decision making process.

Right to privacy

4.24 Division 3 of Part 7 of the Foreign Acquisitions and Takeovers Act 1975 deals with the confidentiality of information and authorises the disclosure of protected information in a range of specified circumstances.

4.25 Protected information is information obtained under the Foreign Acquisitions and Takeovers Act 1975. Section 130 of the Foreign Acquisitions and Takeovers Act 1975 provides that a person does not have to disclose information to a court, tribunal, authority or person having power to require the production of documents or answering of questions, except for the purposes of the Act.

4.26 Amendments are made to clarify that a person cannot be required to share protected information to a court, tribunal, authority or person having power to require the production of documents or answering of questions, except where the information is required for the purposes of the Foreign Acquisitions and Takeovers Act 1975.

4.27 Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with an individual's privacy, family, home or correspondence. Schedule 3 to the Bill promotes this right by providing stronger protection for protected information by limiting the ability of courts, tribunals, authorities or people from requiring a person to disclose information obtained under the Foreign Acquisitions and Takeovers Act 1975, unless such disclosure is authorised by the Foreign Acquisitions and Takeovers Act 1975.

4.28 Division 355 in Schedule 1 to the Taxation Administration Act 1953 protects the confidentiality of taxpayer information. Section 355-25 provides that it is an offence for a tax officer to make a record of information or disclose protected information either to another entity or to a court or tribunal, other than the primary entity or a 'covered entity' specified in section 355-25(2).

4.29 Under the previous provisions, a tax officer is unable to directly disclose confidential information about the taxpayer to a tax agent, a BAS agent or a legal practitioner of an entity listed above who represents the taxpayer.

4.30 Section 355-25(2) is amended to add provisions that provide that a covered entity to whom confidential information can be disclosed to includes the registered tax agent or BAS agent of another covered entity mentioned in sections 355-25(2)(c) to (e) or the legal practitioner representing those entities in relation to the affairs of the taxpayer.

4.31 Article 17 of the ICCPR is engaged because the provision expands the range of persons to whom a tax officer can disclose protected information. The amendments allow a tax officer to disclose information to the legal practitioner, tax or BAS agent of the covered entities mentioned in section 355-25(2)(c) to (e). This permits disclosure to entities that may not directly represent the taxpayer to whom the information relates but nonetheless need access to this information in their capacity assisting the relevant covered entities in managing the taxpayer's affairs.

4.32 The amendments ensure that disclosure is proportionate to enabling the efficient management of a taxpayer's affairs. Disclosure can only be made to those who currently deal with similar protected information and who are adequately licenced or registered with oversight from a governing body (such as the Tax Practitioner's Board or a Law Society).

Right for a person with disability to have access to transport

4.33 Section 38-510 of the GST Act provides that the supply of a car to a person with a disability is GST-free if that person holds a current disability certificate issued by the Managing Director of the 'nominated company.'

4.34 The amendments allow a medical practitioner to issue a medical eligibility certificate for the purposes of access the GST-free supply of a car.

4.35 Article 9 of the Convention of the Rights of Persons with Disabilities states appropriate measures to ensure equal access to transportation for persons with disabilities.

4.36 The amendment engages and promotes this right by enabling medical practitioners to issue certificates that grant access to GST-free supplies of cars. This ensures the continuity of the scheme that is providing a favourable tax treatment to the supply of vehicles for people with disabilities.