Hansard debates

Mr PALLAS (Treasurer) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter act'), I make this statement of compatibility with respect to the Back to Work Bill 2014.

In my opinion, the Back to Work Bill 2014, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement.

Overview

The bill establishes a Back to Work scheme, the purpose of which is to provide relief to employers in respect of the costs associated with hiring certain unemployed or retrenched workers. Under the bill I am responsible for determining the eligibility criteria, which will be published as guidelines in the Government Gazette. The commissioner for state revenue will be responsible for the administration of this scheme and has the general administration of this bill.

The framework for the administration of this scheme is largely based on that used for the administration of grants payable under the First Home Owner Grant Act 2000. The bill provides for the commissioner to receive, determine and appropriate funds for the payment of claims. Claimants are required to use an approved form, provide the required information, and comply with record-keeping obligations. Offence provisions support the enforcement of these requirements.

The bill provides for the investigation of claims. An investigation must be authorised. For the purposes of an investigation, the bill provides the commissioner with the power to require information, compel attendance to answer questions, produce documents and evidence given on oath or under a statutory declaration. Powers of entry, search, inspection and seizure are also provided and offence provisions are provided to enforce compliance.

When making or varying a decision in relation to a claim or penalty, the commissioner must give the claimant a notice of the decision with reasons. A claimant who is dissatisfied with a decision has the right to object and, if the objection is wholly or partly disallowed, may request referral of the matter to the Victorian Civil and Administrative Tribunal.

If an amount is subsequently found to have been paid through error or dishonesty, the commissioner may require it to be repaid and may proceed to recover it from the claimant or a third party. If a payment is not repaid as required, the commissioner may impose a penalty up to the value of the payment. Interest can also be charged on this amount.

The secrecy provisions of the bill protect the confidentiality of information obtained under and for the purposes of this bill. Disclosure is prohibited unless with the person's consent, or for a purpose or to a person specified in the bill. Secondary disclosure is also prohibited, except with the commissioner's consent, to perform a statutory function for the enforcement or administration of a law or the protection of the public revenue.

The bill also amends the Taxation Administration Act 1997 to permit disclosure of tax-related information obtained under or in relation to that act in connection with the administration or execution of this bill.

Human rights issues

In providing for the establishment and operation of a Back to Work scheme, provisions in the bill limit the right of freedom of movement, the right to privacy and reputation, freedom of expression, the right to property, and rights in criminal proceedings. The extent and purpose of these limitations is outlined below.

Freedom of movement

Section 12 of the charter provides that every person lawfully in Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

The bill (clause 30) provides that the commissioner of state revenue may require a person to attend at a specified time and place to answer questions relevant to an authorised investigation. To the extent that a person may be required to be in a specified place at a time specified by the commissioner, this provision may limit a person's freedom of movement.

This limitation is necessary for the enforcement of the statutory obligations on claimants. This power is one of a suite of investigative and enforcement powers. It is relied upon where the required information has not been, or cannot be, provided voluntarily. The underlying purpose of the compliance and enforcement provisions is to ensure that payments are made only where the eligibility criteria are met. The commissioner requires accurate and complete details in relation to claims in order to establish whether a claim should be, or should have been, allowed.

For these reasons, I consider this limitation on a person's freedom of movement to be reasonable in the circumstances.

Right to privacy and reputation

Section 13 of the charter provides that a person must not have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with or have their reputation unlawfully attacked.

The right to privacy is limited to the extent that personal information is collected, retained, used and disclosed for the determination and investigation of claims. This bill provides powers for the collection, use and retention and disclosure of information, which may include personal information (clauses 6(2)(b), 15, 20–26, 30, 31 and 32). Authorised officers may require a person to answer questions, provide information, documents or evidence and, with the authority of a search warrant, to enter, search and inspect premises and seize a thing named in the warrant. These powers are exercised for the purposes of an authorised investigation.

These powers are required to ensure claimants provide complete and accurate information to support their claims and comply with record-keeping obligations. The commissioner relies on information provided by claimants and other sources to determine whether a claim is payable and to carry out investigations, reviews and recovery activities. Those providing information also rely on the confidentiality of this information for the protection of their privacy and reputation.

The bill provides specifically for disclosures to the minister, the Secretary to the Department of Treasury and Finance, and the Victorian WorkCover Authority, and a police officer of or above the rank of inspector. It also authorises disclosure in connection with the administration and enforcement of this bill, a taxation law and a requirement imposed under an act.

An authorised disclosure may occur, for example, when information obtained to determine a claim is disclosed in connection with the administration of the taxation laws, to enable a claimant to apply a payment to a payroll tax liability, or to enable the commissioner to verify information provided in support of a claim against information provided in relation to the claimant's payroll tax liability.

I believe that the limits on the charter right to privacy and reputation are necessary for the administration of the scheme established by the bill, to enable the commissioner and authorised officers to obtain, retain, use and disclose information relevant to the determination, payment, review and recovery of claimed amounts.

Freedom of expression

Section 15(2) of the charter provides a person with the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria. Section 15(3) of the charter recognises that this right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality.

The right to freedom of expression is limited by the secrecy provisions described above. These provisions prevent not only the unauthorised disclosure of personal information, which engages the right to privacy and information, but also the unauthorised disclosure of information relating to bodies corporate or other agencies.

The secrecy provisions are an example of the lawful restrictions contemplated in section 15(3) that are reasonably necessary to respect individual privacy and reputation rights (considered above), and the confidentiality of other information obtained for and in the course of the administration of this bill. I therefore consider these limitations on the freedom of expression to be reasonable in the circumstances.

Right to property

Section 20 of the charter protects against the deprivation of property other than in accordance with law.

The principal purpose of this bill is to make a payment, where the claimant proves their entitlement to relief in respect of certain costs. While the bill does not operate to deprive any person of their legal property, the bill makes provision for the commissioner to require a repayment, to impose penalty and interest and to recover these amounts from claimants of amounts that have been erroneously or dishonestly claimed. The period in which the commissioner may revisit a decision is limited to five years after the initial decision.

The bill (clause 9) engages this right as the commissioner is provided the function to vary or reverse an initial claim decision and to require repayment from the claimant by a date specified in a notice issued to the claimant. The bill provides the commissioner with the ability to recover this amount as a civil debt from the claimant or a third party, and to impose a penalty and interest in the event that the amount is not repaid as required (clauses 37, 38, 39 and 40).

The repayment represents an amount to which the claimant was not entitled. In taking action to obtain repayment of this amount, the commissioner is not depriving a person of their rightful property, but recovering an amount of money to which they were not entitled. Recovery against a third party may be appropriate where a claimant is, for example, in a financial relationship with another entity.

Clause 8(3) also provides for part or all of a back-to-work payment to be applied at (and only at) the claimant's request, to a tax or other liability of the claimant payable to the commissioner under a law for which he has general administration. The purpose of this provision is to enable claimants, who in many cases will have liabilities for payroll tax, to offset the amount of their back-to-work payments against these other liabilities. The ability to make offsets streamlines day-to-day administration and may also assist in the protection of the revenue. While this provision could be regarded as a limitation on a claimant's property right, the claimant retains the right to determine whether to request such an offset. For the reasons outlined above, I believe that this limitation is reasonable in the circumstances.

The investigative powers provided in this bill (part 5, division 2) include powers of entry, search and seizure exercisable under a search warrant (clause 32). The purpose of these powers is to enforce the production of material relevant to an investigation, and proper administration and enforcement of this bill relies on the effective conduct of investigations.

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law. The standard requirements for the exercise of these powers provided in this bill establish the lawful basis for the seizure of property consistent with the charter. For the reasons stated above, I believe that the limitations on property rights associated with the exercise of the investigative powers provided in the bill is reasonable in the circumstances.

Rights in criminal proceedings

Section 25 of the charter recognises a person's rights in criminal proceedings. Two rights relevant to this bill are the right to be presumed innocent until proved guilty (the presumption of innocence) and the right not to be compelled to testify against oneself (the privilege against self-incrimination).

Right to be presumed innocent

Section 25(1) of the charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. The presumption of innocence is engaged by the inclusion of offence provisions which place the onus on the person accused to raise a defence, or which reverses the onus of proof.

There are no provisions in this bill that reverse the onus of proof. The provisions imposing directors' liability for offences committed by a body corporate have imposed accessorial liability (clause 49) or liability for a failure to exercise due diligence (clause 50).

Clause 36(c) of the bill provides that it is an offence for a person, without reasonable excuse, to refuse or fail to comply with a requirement made by an authorised officer in the exercise of that officer's powers under division 2 of part 5. This provision enables a person who has a 'reasonable excuse' to escape liability for what would otherwise be unlawful conduct. The provision of a reasonable excuse defence operates as a protection against the strict operation of the obligation to comply with an officer's requirement.

I believe that any limitation on the right to be presumed innocent arising from the inclusion of this defence is a reasonable limitation, for the reasons outlined above.

Privilege against self-incrimination

Section 25(2)(k) of the charter provides that a person charged with a criminal offence has the right not to be compelled to testify against himself or herself or to confess guilt.

Clause 35 of the bill provides protection against self-incrimination. It provides that a person may refuse or fail to give information or documents or answer questions on the ground that it would tend to incriminate the person. This provision does not excuse a person from giving information, providing documents or answers to questions required under division 2 of part 5 of the bill. The privilege conferred in this bill operates, however, to the extent that information, documents produced or questions answered as required under this division are not admissible in any proceeding in respect of an offence against this act.

The powers to compel the production of information, answers and documents are required in order to ensure that the commissioner of state revenue is able to conduct effective investigations and obtain the information required to fulfil his statutory functions. To this extent, the exercise of these powers during an authorised investigation limits the protection against self-incrimination.

I believe, for the reasons given above, the limitation on the operation of the protection against self-incrimination is reasonable in the circumstances.

Tim Pallas, MP
Treasurer