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Treasury Laws Amendment (Working Holiday Maker Employer Register) Bill 2017

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2016-2017

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Treasury Laws Amendment (Working HOliday Maker EMPLOYER REGISTER) Bill 2017

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the

Treasurer, the Hon Scott Morrison MP)





Table of contents

General outline and financial impact............................................................ 5

Chapter 1               Working holiday maker employer information................. 7

 

 



Working holiday maker employer registration information

The Bill gives effect to the Government’s commitment that:

•        employer registration information about working holiday maker employers will not be made publicly available; and

•        the Commissioner of Taxation will only be able to disclose protected information to the Fair Work Ombudsman for an entity that is actually or is reasonably suspected of non-compliance with a taxation law.

Date of effect :  The amendments apply from 2 December 2016.

Proposal announced :  Changes to the employer register were announced by the Treasurer on 30 November 2016.

Financial impact:   These amendments are estimated to have no revenue impact over the forward estimates period.

Human rights implications :  This Bill does not give rise to any human rights issues. See Statement of Compatibility with Human Rights — paragraphs 1.19 to 1.22.

Compliance cost impact Negligible.

 



Chapter 1          

Working holiday maker employer information

Outline of chapter

1.1                   The Bill gives effect to the Government’s commitment that:

•        the information collected by the Commissioner of Taxation (Commissioner) concerning the employer registration information of employers of working holiday makers will not be able to be made publicly available; and

•        the Commissioner will only be able to disclose protected information to the Fair Work Ombudsman for an entity that is actually or is reasonably suspected of non-compliance with a taxation law.

Context of amendments

1.2                   Schedule 2 to the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 requires the Registrar of the Australian Business Register to record the dates on which the registration and the cancellation of registration of a working holiday maker employer take effect on the Australian Business Register. The Registrar of the Australian Business Register could then make this information publicly available, allowing it to be accessed through the Australian Business Register. The Commissioner is the Registrar of the Australian Business Register.

1.3                   Schedule 4 to the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 expanded the information the Commissioner can disclose to the Fair Work Ombudsman without breaching the secrecy provisions in Schedule 1 to the Taxation Administration Act 1953 . The amendments allowed the Commissioner to disclose information that is relevant to ensuring an entity’s compliance with the Fair Work Act 2009 where previously the Commissioner was restricted to only disclosing to the Fair Work Ombudsman the fact that an entity has actual or reasonably suspected non-compliance with a taxation law .

Detailed explanation of new law

Working holiday maker employer registration information

1.4                   The Bill amends the A New Tax System (Australian Business Number) Act 1999 to ensure that the Registrar of the Australian Business Register is not able to release publicly or otherwise provide working holiday maker employer information to a person who applies to have the entry in the Australian Business Register about an entity released to them. [Item 1, paragraphs 26(3)(jc) and (jd) of the A New Tax System (Australian Business Number) Act 1999]

1.5                   Working holiday maker employer information is information about whether an employer has registered as a working holiday maker employer, the date of commencement of registration as a working holiday maker employer, and if applicable, the date of cancellation of that registration.

1.6                   These amendments ensure that this information is kept on a confidential basis to address any concerns about the privacy of this information. Theamendments make the law consistent with how the Commissioner has administered the law since the commencement of the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 . That is, the Commissioner has chosen not to make public any registration information of working holiday maker employers.

1.7                   It would be expected that, to facilitate their employment arrangements, employers of working holiday makers would advise individual employees who are working holiday makers of their status as a registered working holiday maker employer.

1.8                   Aggregate employer information about working holiday makers will still be provided to the Minister and reported to Parliament, consistent with Schedule 3 to the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 . This reporting process will not identify any working holiday maker employers.

Restricting the ability of the Commissioner to provide information to the Fair Work Ombudsman

1.9                   The Bill reverses the changes made by Schedule 4 to the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016, which expanded the information the Commissioner can disclose to the Fair Work Ombudsman without breaching secrecy provisions. [Item 3, subsection 355-65(8) in Schedule 1 to the Taxation Administration Act 1953]

1.10               This means the Commissioner will only be able to disclose to the Fair Work Ombudsman that an entity is actually or is reasonably suspected of non-compliance with a taxation law. This is consistent with the secrecy provisions that applied to disclosures of such information prior to 1 January 2017and with how the Commissioner has administered the law since the commencement of the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 . That is, the Commissioner has not disclosed to the Fair Work Ombudsman any protected information that is only authorised because of the expanded exception to the secrecy provisions.

Consequential amendments

1.11               A minor consequential amendment has been made to repeal the mechanism for deemed notification of an entity’s registration by the Commissioner. The mechanism for deemed notification allowed the Commissioner to satisfy the requirement to notify an entity of the Commissioner’s decision on the entity’s registration application and the day on which registration takes effect by entering a statement containing this information in the Australian Business Register. As the amendments contained in this Schedule remove the ability of the Registrar of the Australian Business Register to make this information publicly available on the Australian Business Register, entry of such a statement is no longer sufficient to ensure all entities applying for registration are notified of the Commissioner’s decision in relation their application. [Item 2, subsection 16-147(6) in Schedule 1 to the Taxation Administration Act 1953]

1.12               The Commissioner continues to be required to notify working holiday maker employers of their registration within 30 days of receipt of their application for registration.

Commencement and application provisions

1.13               The amendments ensuring that working holiday maker employer registration information cannot be publicly released or given to an entity apply to the giving of copies of entries in the Australian Business Register on or after 2 December 2016. [Subitem 4(1)]

1.14               The amendments which relate to the Commissioner providing information to the Fair Work Ombudsman apply to disclosures of information on or after 2 December 2016 (whether the information was held by the Commissioner before, on or after that day). Despite these amendments applying retrospectively, no retrospective criminal liability is created where information is disclosed relying on the law that is in force at the time of the disclosure. [Subitems 4(3) and (4)]

1.15               Applying the amendments from the date the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 received Royal Assent (2 December 2016) ensures that the relevant changes made by that Act are repealed from the date those changes took effect.

1.16               Taxpayers and employers of working holiday makers are not adversely affected by the retrospectivity of these amendments concerning the privacy of taxpayer information. This is because the amendments make the law consistent with how the Commissioner has administered the law since the commencement of the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 (refer paragraphs 1.6 and 1.10 above).

1.17               The consequential amendments repealing the mechanism for deemed notification of registration of an entity by the Commissioner through an entry on the Australian Business Register apply to registrations made under section 16-147 in Schedule 1 to the Taxation Administration Act 1953 on or after 2 December 2016. [Subitem 4(2)]

1.18               The Commissioner has notified working holiday maker employers of their registration within 30 days of receipt of their applications since registrations started to be made in December 2016.  Accordingly, the retrospective application of the amendment is consistent with the Commissioner’s administrative practice and has no adverse impacts on taxpayers or working holiday maker employers.

Statement of Compatibility with Human Rights

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

The Treasury Laws Amendment (Working Holiday Maker Employer Register) Bill 2017

1.19               This 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

1.20               This Bill gives effect to the Government’s commitments that:

•        the information collected by the (Commissioner) concerning the employer registration information of employers of working holiday makers is not able to be made publicly available; and

•        the Commissioner is only able to disclose protected information to the Fair Work Ombudsman for an entity that is actually or is reasonably suspected of non-compliance with a taxation law.

Human rights implications

1.21               This Bill does not engage any of the applicable rights or freedoms.

Conclusion

1.22               This Bill is compatible with human rights as it does not raise any human rights issues.