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Income
Tax Assessment Amendment (Private Health Insurance Statement)
Regulation 2013
FRLI: F2013L00784
Portfolio:
Treasury
Summary of committee view
2.1
The committee
seeks clarification as to how this instrument and its associated legislation,
in removing strict liability offences in order to rely on the use of existing
absolute liability offences, is compatible with the right to be presumed
innocent.
Overview
2.2
This instrument
amends the Income Tax Assessment Regulations 1997 (principal
regulations) to:
- Update the
requirements relating to private health insurance statements;
- Simplify the
process of updating private health insurance statements (by making it in an
approved form);
- Removing strict
liability penalty provisions, enabling the Australian Taxation Office (ATO) to
rely instead on existing penalty provisions that operate across taxation laws.
Compatibility with human
rights
2.3
The instrument
is accompanied by a self-contained statement of compatibility that states that
it does not engage any rights and so is compatible with human rights.
2.4
However, the
explanatory memorandum explains that in removing the strict liability offences
currently in the principal regulations (which are not used as the applicable
penalty of 5 penalty units is too low, making it 'uneconomical to pursue'), the
ATO will rely instead on the broader penalty regime operating across taxation
laws:
2.5
In particular,
the explanatory memorandum notes that section 8C of the Taxation
Administration Act 1953 will apply. This provision makes it an offence to
do certain things when required to do so, which is an offence of absolute
liability punishable by a fine of up to 20 penalty units.
2.6
The difference
between strict and absolute liability is that it strict liability allows a
defence of honest and reasonable mistake of fact to be raised, while absolute
liability does not.
2.7
Article 14(2) of
the International Covenant on Civil and Political Rights (ICCPR) provides that
everyone charged with a criminal offence has the right to be presumed innocent
until proven guilty. Generally,
consistency with the presumption of innocence requires the prosecution to prove
each element of a criminal offence beyond reasonable doubt, including fault. A Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
states that the use of absolute liability offences should be 'rare and
carefully considered'.[5]
2.8
While this
instrument, in removing strict liability offences, does not impose an absolute
liability offence, the fact that the amendments to this instrument will enable
greater reliance on an absolute liability offence, raises concerns in relation
to the right to be presumed innocent.
2.9
The
committee intends to write to the Assistant Treasurer to ask how this
instrument and its associated legislation, in removing strict liability
offences in order to rely on the use of existing absolute liability offences,
is compatible with the right to be presumed innocent.
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