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Tax Laws Amendment (2012 Measures No. 5) Bill 2012
Introduced into the House of
Representatives on 19 September 2012
Portfolio: Treasury
Committee view
1.2
The committee seeks further information from the Treasurer with regard
to several measures in this bill before forming a view on the compatibility of
the bill with human rights.
Purpose of the bill
1.3
This bill:
- amends the definition of an ‘eligible no-till seeder’ in the Income
Tax Assessment Act 1997 to ensure that it can comprise just the tool, or
the combination of the cart and the tool (schedule 1);
- amends the Income Tax Assessment Act 1997 to phase out the
mature age worker tax offset from 1 July 2012 for taxpayers born on or after 1
July 1957 (schedule 2);
- amends the Excise Act 1901 and the Excise Tariff Act
1921 to provide a robust and more sustainable compliance regime for liquid
petroleum gas, liquefied natural gas and compressed natural gas (schedule 3);
- amends the Excise Act 1901 to clarify when the
Commissioner of Taxation, may, by legislative instrument, specify circumstances
when the creation of certain fuel blends is not considered to be excise
manufacture (schedule 4);
-
amends the Income Tax Assessment Act 1997 to update the
list of deductible gift recipients (DGRs) by adding The Diamond Jubilee Trust
Australia as a DGR (schedule 5); and
- amends the A New Tax System (Wine Equalisation Tax) Act 1999
to ensure that a wine producer will not be entitled to the wine equalisation
tax producer rebate on other wine they use in manufacture, except where the
producer of the other wine (or supplier) notifies the subsequent producer
(schedule 6).
Compatibility with human rights
1.4
The statement of compatibility states that schedules 1, 4 and 5 of the
bill do not raise any human rights issues. The committee considers that
these schedules are unlikely to raise any human rights concerns.
Presumption of innocence
1.5
Schedules 3 and 6 of the bill create strict liability offences in
relation to keeping, retaining and producing records ((schedule 3, item 14,
section 77LA) and where a person gives a notice that is false or misleading
(schedule 6, item 2, subsection 19-28(1)). The statement identifies that these
offences engage the presumption of innocence in article 14(2) of the
International Covenant on Civil and Political Rights (ICCPR). It explains that
these offences are justifiable as it is reasonable to expect individuals who
participate in a regulated activity to know their duties and obligations; the
reverse burden relates to matters which a within the defendant’s own knowledge
and to which they have ready access; and the penalty falls on the lower end of
the scale. The committee considers that these strict liability offences are
unlikely to raise any issues of incompatibility with the presumption of
innocence in article 14(2) of ICCPR.
Right to privacy
1.6
The committee notes that schedule 3 of the bill provides powers for ATO
and Customs officers to enter premises occupied by persons who are required to
keep records under the gaseous fuels record keeping provisions in the Excise
Act 1901 for the purpose of monitoring compliance with the Act. The
statement of compatibility does not address the issue of whether these
provisions are compatible with the right to privacy in article 17 of ICCPR.
Right to non-discrimination
1.7
Schedule 2 if the bill introduces a new eligibility requirement for the
mature-age worker tax offset (MAWTO). From 1 July 2012, access to the MAWTO
will be restricted to those who are already age eligible, that is, those born
on or before 30 June 1957. In other words, individuals who were under the age
of 55 at 30 June 2012 will be ineligible to access the tax offset once they
turn (or turned) 55.
1.8
The explanatory memorandum indicates that the MAWTO is being phased out
because it is a high cost method of facilitating mature age workforce
participation. However, the MAWTO will be maintained for people who have
already built the benefit into their household budgets.
1.9
The statement of compatibility states that these amendments do not
engage any human rights.
1.10
The committee observes that these provisions draw an arguable
distinction based on age because it restricts eligibility for the MAWTO on the
basis of when an individual turns 55.
1.11
Article 26 of ICCPR prohibits discrimination in law or in practice in
any field regulated by public authorities. This means that when the
Commonwealth legislates in any particular area, it must do so without
discriminating. Article 26 of the ICCPR is a ‘free‐standing’ bar on
discrimination and is not limited to the ICCPR rights.
1.12
Discrimination means any distinction, exclusion, restriction or
preference or other differential treatment that is directly or indirectly based
on the prohibited grounds of discrimination, including age, and which has the
intention or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of all rights and freedoms.
1.13
A difference in treatment on prohibited grounds, however, will not be
directly or indirectly discriminatory provided that it is (i) aimed at
achieving a purpose which is legitimate; (ii) based on reasonable and objective
criteria, and (iii) proportionate to the aim to be achieved.
1.14
International human rights law has also generally acknowledged that
personal characteristics are often legitimate factors that may be taken into
account in formulating tax measures. Further, governments are usually accorded
a degree of deference in tax matters, provided that there is a reasonable basis
and a relationship of proportionality between the legitimate aim pursued and
the means used and overall strike a fair balance between the interests of the
community and the individual.
1.15
The committee proposes to write to the Treasurer to seek his advice
on the following matters before forming a view on whether this bill is
compatible with human rights:
- Whether any differential treatment resulting from the measures
in schedule 2 of the bill is consistent with the right to non-discrimination in
article 26 of ICCPR.
- Whether the monitoring powers in schedule 3 of the bill are
compatible with the right to privacy in article 17 of ICCPR.
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