Back to Work Bill. Exposure Draft EXPLANATORY MEMORANDUM. General

Transcription

1 Back to Work Bill Exposure Draft EXPLANATORY MEMORANDUM General The object of this Bill is to establish a Back to Work Scheme for the purpose of providing relief to employers in respect of the costs associated with hiring certain unemployed or retrenched workers and to make consequential amendments to the Taxation Administration Act 1997 and for other purposes. Clause Notes Part 1 Preliminary Part 1 of the Bill outlines the purposes of the Bill and contains the commencement provisions and definitions. Clause 1 outlines the purpose of the Bill. Clause 2 provides that the Bill will come into operation on 1 July It is proposed that, under the eligibility criteria for the Scheme, eligible employers will be required to be able to demonstrate a 3 month employment period has been met for eligible employees. Accordingly, the period for eligible employment will effectively commence from 1 April 2015, with Scheme payments to be made available from 1 July Note that section 13 of the Interpretation of Legislation Act 1984 enables the eligibility criteria for the Scheme and any other relevant Guidelines to be issued, and other relevant preparations to be undertaken, prior to 1 July 2015 in readiness for the commencement of the Scheme. 1

2 Clause 3 defines terms used in the Bill including Back to Work payment which is defined to mean a payment under the Back to Work Scheme; Back to Work record which is defined to mean a record required to be kept by a claimant in accordance with section 20 or 21; Back to Work Scheme which is defined to mean the scheme established under section 4; claim which is defined to mean a claim for a Back to Work payment; claimant which is defined to mean a person who makes or has made a claim; eligibility criteria which is defined to mean the criteria determined under section 5; eligible employee which is defined to mean an employee who is determined, or is in a class determined, in accordance with the eligibility criteria to be an eligible employee. Part 2 Back to Work Scheme Part 2 of the Bill covers the establishment of the Back to Work Scheme and the eligibility criteria. Clause 4 Clause 5 establishes the Back to Work Scheme for the purpose of providing relief for employers in respect of the costs associated with hiring certain unemployed or retrenched workers. Subclause (1) provides that the Minister is to determine the eligibility criteria for payments under the Back to Work Scheme. Subclause (2) requires the Minister to cause notice of the eligibility criteria to be published in the Government Gazette. It is intended that the eligibility criteria will be determined and gazetted prior to the Scheme coming into operation on 1 July Subclause (3) provides that a notice under subclause (2) is not a legislative instrument within the meaning of the Subordinate Legislation Act This ensures that the eligibility criteria and any subsequent changes may be made under the Bill in a timely manner without having to comply with the administrative requirements relating to 2

3 the making of legislative instruments imposed by the Subordinate Legislation Act 1994 (e.g. the obligation to prepare a regulatory impact statement). This approach recognises that, for the Back to Work Scheme to be effective, it requires both the administrative powers in order to obtain information and process Back to Work claims, as well as providing maximum flexibility to tailor the eligibility criteria to ensure the Scheme works effectively and efficiently for all involved (e.g. the inclusion of additional eligible employees, adjusting timeframes and payment amounts). The equivalent scheme in Tasmania takes the same approach. Subclause (4) provides that the eligibility criteria may include a cap on the amount of any Back to Work payment and a cap on the number of payments that may be made in any specified period. Part 3 Claiming Back to Work payments Part 3 of the Bill covers how a claim should be made and what is required of the Commissioner of State Revenue ("Commissioner") in making a decision on that claim. This Part also covers payment of the claim, power for the Commissioner to correct decisions and the objection and review provisions. Division 1 Making a claim Clause 6 Subclause (1) provides that if a person believes they are eligible for a Back to Work payment, they may make a claim to the Commissioner in respect of an eligible employee. Subclause (2) provides that a claim must be in a form approved by the Commissioner and must contain the information required by the Commissioner in relation to the claimant's eligibility for the payment. A claim must be made within the time provided for in the eligibility criteria and must comply with any other requirements of the eligibility criteria. Division 2 Decision on claims Clause 7 Subclause (1) requires the Commissioner to decide whether a claimant meets the eligibility criteria for a Back to Work payment. Where the Commissioner is satisfied that a claimant is eligible, the Commissioner must determine the amount of the payment. 3

4 Subclause (2) provides that the amount of the payment is to be determined in accordance with the eligibility criteria. Subclause (3) authorises the Commissioner to make a payment if satisfied that a claimant meets the eligibility criteria for a Back to Work payment. Clause 8 Clause 9 Subclause (1) provides that a Back to Work payment can be made by electronic funds transfer or any other way the Commissioner thinks appropriate. Subclause (2) provides that a Back to Work payment is to be paid to the claimant or to some other person whom the claimant nominates in writing. Subclause (3) provides that a Back to Work payment may be applied towards any liability of the claimant under a taxation law or any other law under the general administration of the Commissioner, if the claimant so requests. Subclause (1) provides that, if the Commissioner decides a claim and is later satisfied, independently of an objection, that the decision was incorrect, the Commissioner may vary or reverse the incorrect decision. Subclause (2) provides that a decision cannot be varied or reversed more than 5 years after it was made, unless all the facts and circumstances affecting the claimant's eligibility for the Back to Work payment were not fully and truly disclosed to the Commissioner. Clause 10 Subclause (1) provides that the Commissioner must give notice of a decision on a claim. Subclause (2) provides that if the decision is to refuse a claim, or to vary or reverse a decision on a claim, the Commissioner must state reasons for the decision in the notice. Division 3 Objections and reviews Clause 11 Subclause (1) provides that a claimant who is dissatisfied with a decision on the claim (including a decision to reverse or vary an earlier decision) or a decision to impose a penalty, may lodge a written objection with the Commissioner. Subclause (2) requires that the grounds for the objection must be stated fully and in detail, and must be in writing. 4

5 Subclause (3) places the burden of proof of the objector's case on the objector. Subclause (4) requires the objection to be lodged with the Commissioner within 60 days after the date of the notice of decision. Subclause (5) allows an objection to be lodged outside the 60-day period if the Commissioner is satisfied that the claimant has a reasonable excuse for failing to lodge the objection within the required time. Subclause (6) provides that an objection is taken to be lodged with the Commissioner when it is received by the Commissioner. Clause 12 Subclause (1) provides that the Commissioner must consider an objection and either allow the objection in whole or in part or disallow the objection. Subclause (2) provides that an objection that is subject to a right of review may be determined at any time by the Commissioner before those proceedings commence. Subclauses (3) and (4) require notice in writing of the outcome of the objection and the reasons for disallowing or allowing it in part to be given. Clause 13 provides that if an objector, or some other person, fails to provide information requested that is relevant to the objection, the determination of the objection may be suspended until the information is provided. Written notice of the suspension must be given. Clause 14 Subclause (1) provides that an objector, in writing, may request the Commissioner to refer the matter to VCAT if the objector is dissatisfied with the Commissioner's decision on the objection or if 90 days (excluding any period of suspension) have passed since the objection was received and a determination has not been made. Subclause (2) provides that where the objector is dissatisfied with the Commissioner's determination of the objection, the objector's request for referral to VCAT must be made within 60 days after the date of service on the objector of the notice of the Commissioner's determination of the objection. 5

6 Similarly, where a determination is not made by the Commissioner within 90 days since the objection was received by the Commissioner, the objector may, at any time after the 90-day period, request that the matter be referred. Subclause (3) provides that subject to clause 15, the Commissioner must refer the matter for review within 60 days after the request. Clause 15 Subclause (1) provides that the Commissioner may request further and better particulars within 30 days after receiving a request to refer a matter for review. Subclause (2) provides that once full particulars are provided within 30 days of the request, there is a further 30-day period before the matter must be referred. The Commissioner must not refer the matter if full particulars are not given. Clause 16 provides that on a review, unless VCAT orders otherwise, the objector's case is limited to the grounds of the objection and the Commissioner's case is limited to the grounds on which the objection was disallowed. Clause 17 provides that the burden of proving the objector's case is on the objector. Clause 18 Subclause (1) provides for VCAT to review a matter referred to it, and empowers it to confirm or vary the decision on the claim for a Back to Work payment. Subclause (2) requires VCAT to confirm the decision if the objector does not appear, although, if good cause is shown within 6 weeks after the day on which the decision is confirmed, VCAT may re-open and review the matter. Clause 19 Subclause (1) requires the Commissioner to take any action necessary to give effect to VCAT's decision within 60 days of that decision becoming final. Subclause (2) deems that the date the decision becomes final is 30 days after the day of the decision, if no appeal to a court is made. 6

7 Part 4 Back to Work records Part 4 of the Bill contains general record keeping requirements for claimants including keeping relevant records for a certain period of time, keeping them in English (or easily convertible into English) and ensuring that records are readily accessible. There are offences that attract penalties for a failure to comply with these obligations and for knowingly including false or misleading information in a record. Clause 20 requires a claimant to keep all records that are necessary to enable the claimant's eligibility for a Back to Work payment to be properly assessed. A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Clause 21 requires a claimant, on written notice from the Commissioner, to keep additional records as determined by the Commissioner. A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Clause 22 creates an offence for knowingly including information in a Back to Work record (required to be kept under the Bill) that is false or misleading in a material particular. A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Clause 23 provides that Back to Work records (required to be kept under the Bill) are to be kept in such a manner that they can be readily produced to the Commissioner. A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Clause 24 Subclause (1) provides that Back to Work records (required to be kept under the Bill) must be kept in English, or easily convertible into the English language. A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. 7

8 Subclause (2) provides that the Commissioner may recover from a claimant the costs reasonably incurred by the Commissioner in converting or translating a Back to Work record into English in the Magistrates' Court irrespective of the amount or in any other court of competent jurisdiction. Clause 25 Subclause (1) requires a claimant to retain Back to Work records (required to be kept under the Bill) for 5 years from the date the record was made. A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Subclause (2) provides that a claimant may, if the Commissioner authorises them in writing, destroy a record before the end of the 5-year period. Clause 26 creates an offence for wilfully damaging or destroying a Back to Work record (that is required to be kept under the Bill). A maximum penalty of 10 penalty units for an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Part 5 Administration and enforcement Part 5 of the Bill confers the Commissioner with general administration of the Bill and the regulations. Additionally, this Part contains provisions relating to investigations, including powers of entry and inspection and search warrants. Penalties are set out in respect of failure to comply with certain provisions. Further, this Part contains provisions relating to repayments and the confidentiality provisions, which prohibit and permit certain disclosures of information by authorised officers to particular recipients. Division 1 Administration Clause 27 confers general administration of the Bill and the regulations on the Commissioner. Clause 28 provides that the Commissioner, and persons appointed as authorised officers under the Taxation Administration Act 1997, are authorised officers for the purposes of the Bill. 8

9 Division 2 Investigations Clause 29 defines the allowable purposes of an authorised investigation. Such investigations may involve a compliance check following the making of a Back to Work payment. Clause 30 Subclause (1) empowers the Commissioner, by written notice, to require a person to provide information, produce documents or attend and give evidence. Subclause (2) enables the Commissioner to require evidence not given orally to be verified by statutory declaration. Subclause (3) enables the Commissioner to require oral evidence to be given on oath. Subclause (4) requires a person to comply with a notice given under this provision within a specified time. A maximum penalty of 60 penalty units for an individual and 300 penalty units for a body corporate is prescribed for a breach of this provision. Clause 31 sets out the powers of entry and inspection for the purposes of an authorised investigation, including the power to inspect premises, require a person to produce a document, retain a document, answer questions and give an authorised officer other reasonable assistance. The authorised officer may enter premises with the consent of the occupier or on the authority of a warrant issued under clause 32. The occupier must immediately be given a copy of their signed consent. An authorised officer must produce his or her identity card. Clause 32 makes provision for obtaining a search warrant. Subclause (1) enables an authorised officer to apply for the issue of a search warrant if the officer believes there is, or may be in the next 72 hours, on the premises a thing relevant to the administration of the Bill. Subclause (2) empowers a magistrate to issue a search warrant if satisfied by evidence on oath there is or will be in the next 72 hours a relevant thing on the premises. The warrant can authorise the officer to enter the premises, search for and seize the things named in the warrant and break open any receptacle if necessary. 9

10 Subclause (3) requires a search warrant to state the premises to be searched, a description of the thing to be searched for, any conditions of the warrant, any restrictions on time of entry and the day the warrant ceases to have effect. Subclause (4) provides that a search warrant must be issued in accordance with the Magistrates' Court Act Subclause (5) provides for the rules that are to be observed in the Magistrates' Court Act 1989 relating to search warrants to extend and apply to warrants issued under this clause. Clause 33 requires an authorised officer or assistant to announce their authority to enter under the warrant before executing it, unless the officer or assistant believes on reasonable grounds that immediate entry is necessary for any person's safety or so that effective execution is not frustrated. Clause 34 requires that, if the occupier or the occupier's apparent representative is present when the warrant is being executed, an authorised officer must identify themselves by producing their identity card for inspection and give the occupier or representative a copy of the execution copy of the warrant. Clause 35 provides that a person may refuse to give information, produce documents or answer questions under this Division on the ground that it would incriminate the person in respect of an offence other than an offence under the Bill. Information given, documents produced, or questions answered by a person as required by this Division are not admissible in evidence against the person in any proceeding in respect of an offence against the Bill. Clause 36 creates an offence where a person hinders or obstructs, or fails to reasonably co-operate with or answer a question asked by, an authorised officer carrying out an authorised investigation. A maximum penalty of 60 penalty units in the case of an individual and 300 penalty units for a body corporate is prescribed for a breach of this provision. 10

11 Division 3 Repayments and penalties Clause 37 provides for repayments and penalties. Subclause (1) provides that the Commissioner may, by written notice, require a claimant to repay the whole amount, or part of the amount, of a Back to Work payment if the amount was paid in error or the decision under which the amount was paid is reversed. Subclauses (2) and (3) provide that if it was the claimant's dishonesty which led to the amount being paid, or the claimant fails to make a repayment, the Commissioner may impose a penalty not exceeding the amount the claimant is required to repay. Subclause (4) provides that an amount or penalty under this section is payable by the date specified in the notice. Subclause (5) provides that a claimant will be liable to pay interest on any unpaid amount that is required to be repaid to the Commissioner under subclause (1) or penalty imposed under subclause (2) or (3). The amount of interest is to be calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under Division 1 of Part 5 of the Taxation Administration Act The Commissioner, in any circumstances the Commissioner considers appropriate, may remit interest payable by a claimant under this section by any amount. Clause 38 Subclause (1) limits the scope of the power to recover amounts from a claimant under this clause to part or all of an overpayment or an amount of a penalty. Subclause (2) imposes a liability to pay the amount on an claimant. Subclause (3) enables the Commissioner to recover an amount as a debt due to the State. Subclause (4) allows for payment of an outstanding liability by instalments. Subclause (5) enables the Commissioner to write off the whole or part of the outstanding liability if recovery is impracticable or unwarranted. 11

12 Clause 39 Subclause (1) provides for the collection of debts from third parties in specified circumstances. Subclause (2) empowers the Commissioner to require any person owing money to a claimant, holding money on behalf of a claimant or having authority to pay money to a claimant, to pay an amount to which this clause applies that remains unpaid. Subclause (3) enables the Commissioner's requirement to be in writing. Subclause (4) requires a copy of the requirement to be served on the claimant. Subclause (5) provides that the maximum amount a person can be compelled to pay under this section is the amount payable by the claimant. Subclause (6) compels the person to pay the money to Commissioner on receipt of the notice or when the money is held by that person, whichever is the later. Subclause (7) requires the person to comply with the Commissioner's requirement. A maximum penalty of 10 penalty units in the case of an individual and 50 penalty units for a body corporate is prescribed for a breach of this provision. Subclause (8) requires the Commissioner to notify a person to whom a requirement under this section has been given promptly if the whole or a part of the amount is paid by another person. Clause 40 provides for the indemnification of a third party who makes a payment in accordance with clause 38. Division 4 Confidentiality Clause 41 defines an authorised person as an authorised officer or any other person engaged (whether as an employee, consultant, contractor or otherwise) in the administration of the Bill. Clause 42 prohibits an authorised person from disclosing any information obtained under or in relation to the Bill, except as permitted by this Part. Failure to comply with this provision is an offence with a maximum statutory penalty of 60 penalty units in the case of an individual and 300 penalty units for a body corporate. 12

13 Clause 43 permits an authorised person to disclose information obtained under or in relation to the administration of the Bill with the consent of the person to whom the information relates, or in connection with the administration or enforcement of the Bill or other relevant laws, or in accordance with a requirement under an Act or to a specified authorised recipient. Authorised recipients are specified in paragraph (d) and include the Minister, the Secretary to the Department of Treasury and Finance, the Victorian WorkCover Authority, a police officer of or above the rank of Inspector or a person prescribed to be an authorised recipient for the purposes of this section. Clause 44 permits the Commissioner to disclose information obtained under or in relation to the administration of the Bill which is not likely to identify a particular person. Clause 45 permits the Commissioner to disclose information likely to identify a person if the disclosure is permitted by the Bill or necessary for the administration of the Bill. Clause 46 prohibits a person disclosing information obtained from an authorised person unless the disclosure is made to enable the person to perform a function conferred by law for the purpose of enforcement or administration of the law or protecting the public revenue, or the disclosure is authorised by the Commissioner. Failure to comply with this provision is an offence. The maximum statutory penalty is 60 penalty units for an individual and 300 penalty units for a body corporate. Clause 47 provides that a person is not required to disclose in Court any information obtained in relation to the Bill, unless it is necessary for the administration of the Bill or it is for the purposes of enabling a person who is specified for the time being to be an authorised recipient to perform a function conferred or imposed on the person by law. 13

14 Part 6 Miscellaneous Part 6 of the Bill contains miscellaneous provisions, including such matters as the making of dishonest or misleading statements. Division 1 Further offences and ancillary provisions for offences Clause 48 Subclause (1) creates an offence where a person, in or in connection with a claim, gives information, makes a statement or produces a document that is, to the person's knowledge, false or misleading. A maximum penalty of 60 penalty units in the case of an individual and 300 penalty units for a body corporate is prescribed for a breach of this provision. Subclause (2) provides that a person must not omit information about any matter or thing, omit from a statement any matter or thing, or fail to produce a document, without which the claim is, to the person's knowledge, false or misleading in a material particular. Failure to comply with this provision is an offence. The maximum statutory penalty is 60 penalty units for an individual and 300 penalty units for a body corporate. Clause 49 provides that, if a body corporate commits an offence against clause 24(1) or 39(7), an officer of the body corporate also commits an offence against the provision if the officer authorised or permitted the commission of the offence by the body corporate or was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate. The provision states that an officer may commit an offence whether or not the body corporate has been prosecuted for, or found guilty of, an offence. The provision however allows the officer to rely on a defence that would have been available to the body corporate had the body corporate been charged with the same offence. The officer bears the same burden of proof that the body corporate would bear in establishing the defence. The provision also makes clear that officers' accessorial liability does not affect the operation of sections 323 and 324 of the Crimes Act

15 Clause 50 provides that if a body corporate commits an offence against a specified provision, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence. Subclause (2) specifies the following provisions: clauses 20, 21(2), 22, 23, 25(1), 26, 30(4), 36, 42(1), 46(1), 48(1) and (2). The provision states that an officer may commit an offence whether or not the body corporate has been prosecuted for, or found guilty of, an offence. The provision however allows the officer to rely on a defence that would have been available to the body corporate had the body corporate been charged with the same offence. The officer bears the same burden of proof that the body corporate would bear in establishing the defence. Clause 51 provides that any prosecution for an offence under the Bill must be commenced within 3 years after the alleged commission of the offence. Division 2 Miscellaneous Clause 52 provides that a certificate signed by the Commissioner stating that a Back to Work payment was paid to a person named in the certificate on a specified date is admissible in legal proceedings as evidence of the payment. Also admissible are copies of notices issued by the Commissioner imposing a penalty under the proposed Act and requiring payment or repayment of a specified amount. Clause 53 is a standing appropriation which provides that any amount required to be paid under the proposed Act must be paid from the Consolidated Fund and appropriates the Consolidated Fund for that purpose. Clause 54 provides that the Governor in Council may make regulations for or with respect to any matter in the proposed Act. A regulation may create an offence with a penalty not exceeding 20 penalty units. 15

16 Part 7 Amendment of Taxation Administration Act 1997 Part 7 contains provisions making consequential amendments to the Taxation Administration Act Clause 55 amends section 20 of the Taxation Administration Act 1997 by inserting a new subsection (3) that provides that section 20(1)(d)(i) does not apply in respect of a liability under the Back to Work Act Section 20(1)(d)(i) of the Taxation Administration Act 1997 provides that the if an amount has been overpaid by a taxpayer, the Commissioner must apply the overpaid amount against any liability of the taxpayer arising under or by reason of a taxation law or another Act of which the Commissioner has the general administration. This amendment prevents a refund of an overpaid amount from being applied against the liability to repay a Back to Work payment under clause 37. Clause 56 inserts after section 92(1)(b)(i) of the Taxation Administration Act 1997 a new subparagraph(ia), referring to the Back to Work Act Section 92 of the Taxation Administration Act 1997 deals with permitted disclosures and this amendment allows a tax officer to disclose information obtained under or in relation to the administration of a taxation law (such as payroll tax) for the purposes of the administration of the Back to Work Act Clause 57 provides that this Part is repealed on 1 July The repeal of the Part does not affect the continuing operation of the amendments to the Taxation Administration Act 1997 made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 16