House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Industry, the Honourable Ian MacFarlane MP)

Notes on clauses - Trade Support Loans Bill 2014

Chapter 1 - Introduction

Part 1.1 - Preliminary

Clause 1 - Short title

Provides for the Act to be cited as the Trade Support Loans Act 2014.

Clause 2 - Commencement

Provides that sections 1 and 2 and anything in the Act not elsewhere covered by the table in clause 2 commences on the day the Act receives the Royal Assent.

Sections 3 to 106 commence the later of the day after the Act receives the Royal Assent and 1 July 2014.

Clause 3 - Simplified outline of this Act

Provides for a simplified outline of the Act.

It should be noted that while simplified outlines are included in the Act to assist readers to understand the substantive provisions, the outlines are not intended to be comprehensive. Readers should rely on the substantive provisions in the Act.

Part 1.2 - Interpretation

Clause 4 - Simplified outline of this Part

Clause 4 contains a simplified outline of Part 1.2.

Clause 5 - Definitions

Clause 5 defines certain terms that are used in the Act. In this explanatory memorandum, the defined terms will be addressed in the context in which they appear.

Clause 6 - When trade support loan is being paid to a person

Clause 6 provides that trade support loan is only payable to a person when a determination, granting an application for trade support loan, has been made and is in effect (see clause 16). The intention of this clause is if there is a determination in effect granting an application for trade support loan, trade support loan is taken to be being paid to that person even if the person has not received a payment.

Chapter 2 - Loan payments

Part 2.1 - Qualification and payability

Clause 7 - Simplified outline of this Part

Clause 7 provides a simplified outline of Part 2.1.

Clause 8 - Qualification

Subclause 8(1) sets out the qualification requirements a person must meet for a trade support loan. This includes that the person is an Australian resident, undertaking a qualifying apprenticeship, has notified the Secretary of their TFN and meets any other conditions prescribed by the TSL rules.

Clause 5 contains the definition of an Australian resident.

Subclause 8(2) defines a qualifying apprenticeship.

Subclause 8(3) provides that the rules may prescribe circumstances in which a person is or is not undertaking a qualifying apprenticeship.

Subclause 8(4) goes further, by allowing that the TSL rules may prescribe that a person is taken to be undertaking a qualifying apprenticeship during the period from when the person actually completed their apprenticeship to the date a designated State/Territory training authority notifies the Secretary that the person has completed their qualifying apprenticeship.

Clause 9 - Lifetime limit

Clause 9 provides for the lifetime limit of a trade support loan.

If the sum of previously received trade support loan payments and next instalment payment, in accordance with clause 23, will total the lifetime limit, then that person will cease to qualify for any further instalments.

A person who has reached the lifetime limit cannot qualify for further instalments of trade support loan, even if the lifetime limit is increased in the future.

The lifetime limit for an apprentice is set at $20,000 and will be indexed at 1 July 2017 and every year after that, in line with the formula set out at clause 99.

Clause 10 - Payability

Subclause 10(1) sets out the requirements to be met before trade support loan is payable to an apprentice. Trade support loan can be paid to an apprentice in relation to an instalment period if:

•

on the final day of the instalment period, the person is qualified for trade support loan; and

•

the person was undertaking a qualifying apprenticeship for the whole of the instalment period; and

•

the person made an application for trade support loan on or before that final day.

Subclause 10(2) defines instalment period to mean a duration of time as prescribed by the TSL rules which starts or ends on a day determined for the person in accordance with the TSL rules.

Subclause 10(3) lists the duration of prescribed instalment periods and the divisor used in the calculation of instalment payments for each permitted duration. For example, if the permitted duration of the instalment period is a month (item 3), then the yearly rate of trade support loan (clause 24) would be divided by 12.

Clause 11 - Special case qualification and payability

Clause 11 provides if:

•

an instalment of trade support loan is paid in relation to an instalment period, the final instalment period, of the person; and

•

trade support loan was payable to the person in relation to the instalment period ending before the final instalment period but (apart from this clause) is not payable to the person in relation to the final instalment period; and

•

the Secretary determines that this clause is to apply to the person, then

•

the amount that was paid to the person is taken to have been qualified for trade support loan; and

•

the person is taken to have been qualified for trade support loan and trade support loan is taken to have been payable to the person, in relation to the final instalment period.

Subclause 11(2) provides the TSL rules may prescribe circumstances in which the Secretary is to determine that clause 11 does or does not apply to a person.

An example of a special qualification and payability case may be where an apprentice has completed their qualifying apprenticeship, but the Secretary has not yet been notified by a designated State/Territory training authority that the person is considered to have completed, and a payment falls due and is made. If the apprentice receives payment after they have satisfied all requirements, but before the Secretary is notified, the apprentice can keep that TSL payment and it will not be treated as an overpayment debt for the purposes of clause 90.

Part 2.2 - Machinery provisions for payments

Clause 12 - Simplified outline of this Part

Clause 12 provides a simplified outline of Part 2.2.

Clause 13 - Application

Clause 13 provides that a person who wants to be paid TSL must make an application for TSL in accordance with clause 13. An application for trade support loan must be made in a form approved by the Secretary and lodged in a manner prescribed by the TSL rules.

Clause 14 - Withdrawal of application

Clause 14 provides that a person may withdraw their application for trade support loan that has not been determined. An application that is withdrawn is taken to not have been made.

Clause 15 - Determination of application

Clause 15 provides that the Secretary must determine an application for trade support loan by either granting or refusing the application.

Clause 16 - Grant of application

Under subclause 16(1), the Secretary must make a determination granting an application for trade support loan if the Secretary is satisfied that the applicant is qualified for trade support loan and trade support loan is expected to be payable to the applicant in relation to one or more instalment periods (relevant instalment period) ending before the end of the period specified for the purposes of subclause 16(2).

Subclause 16(2) provides that the determination must specify when it ceases to have effect.

Subclause 16(3) provides that the TSL rules may specify the periods that are to be specified in the determinations for the purposes of subclause 16(2).

If the Secretary grants an application for trade support loan, then under subclause 16(4), the Secretary must also determine the applicant's yearly rate of trade support loan for each relevant instalment period. The yearly rate is a different amount, depending on whether the applicant is undertaking the first, second, third or fourth year of their apprenticeship, on the final day of an instalment period (see clause 24).

Clause 17 - Deemed refusal of application

Under clause 17, an application is deemed to have been refused by the Secretary, if the Secretary has not determined the application within 13 weeks after the day the application was lodged.

Clause 18 - Variation of rate

Clause 18 provides that if the Secretary is satisfied that the rate at which trade support loan is being paid to the person in relation to a relevant instalment period of the person is more or less than the rate provided for by this Act, the Secretary must make a determination that the rate is varied accordingly.

Clause 19 - Cancellation

Subclause 19(1) lists when the Secretary must make a determination cancelling a trade support loan that is being paid to a person.

Subclause 19(2) provides that the Secretary may make a determination cancelling a trade support loan that is being paid to a person, if the person has been given a notice under clause 59 or a notice under clause 71 that requires the person to inform the Secretary of an event or change of circumstance and the person does not comply with the notice.

Clause 20 - Date of effect of determinations

Clause 20 provides when various determinations of the Secretary take effect under the Act.

Clause 21 - When determination ceases to be in effect

Subclause 21(1) provides a determination granting a person's application for trade support loan continues until whichever of the listed circumstances specified in subclause 21(1) occurs first.

Subclause 21(2) provides that a determination of a person's rate of trade support loan continues in effect, unless a determination varying the rate, is made under clause 18.

Clause 22 - Payment by instalments

Subclause 22(1) provides trade support loan is to be paid by instalments. Subclause 22(2) provides the Secretary must pay an instalment of trade support loan to a person, in relation to an instalment period, if there is a determination in effect granting the person's application for trade support loan and the Secretary is satisfied that trade support loan is payable to the person in relation to the instalment period.

Subclause 22(3) provides that the instalments are to be paid as soon as reasonably practicable on the day after the end of the instalment period.

Clause 23 - Amount of instalment

Subclause 23(1) provides that the amount of each instalment is calculated by dividing the yearly rate determined under subclause 16(4) for the instalment period by the divisor specified in the table in subclause 10(3) for the instalment period duration.

A person's yearly rate is described in clause 24.

An amount of an instalment may be reduced to ensure that payments do not exceed the lifetime limit (see subclause 23(2)).

Subclauses 23(3) and 23(4) provide for rounding of the instalment amount payable under the Act.

Clause 24 - Yearly rate of trade support loan

Subclause 24(1) provides for a person's yearly rate of trade support loan and is dependent on whether, on the final day of an instalment period, the applicant is undertaking the first, second, third or fourth year of their apprenticeship.

The yearly rate is indexed in the same manner as the lifetime limit (see clause 99).

Subclause 24(2) provides the TSL rules may prescribe one or more ways of determining, or the criteria to be considered in determining, the year of an apprenticeship a person is undertaking on any particular day. This is because apprenticeships can be completed in different ways, and over different time frames. For example, a person's qualifying apprenticeship may be suspended and then later recommence. This will extend the nominal duration of their qualifying apprenticeship. However, it is expected that most apprenticeships will usually be completed over a four year period.

Clause 25 - Payment into bank account

Clause 25 provides that a trade support loan is to be paid into a nominated bank account that is maintained by the person.

This bank account can be either held by that person individually, or jointly, or in common with another person.

Chapter 3 - Loan repayments

Part 3.1 - Incurring debts

Clause 26 - Simplified outline of this Part

Clause 26 provides a simplified outline of Part 3.1.

Clause 27 - TSL debts

Subclause 27(1) provides that if a person has been paid an instalment of trade support loan, the person incurs a debt to the Commonwealth (known as a TSL debt) for the amount of the instalment.

Subclause 27(2) provides that any part of the instalment that is recoverable as an overpayment under clause 93 is not a TSL debt.

Clause 28 - TSL debt discharged by death

Clause 28 provides that, upon the death of a person who owes a TSL debt to the Commonwealth, the debt is taken to have been paid. A note to clause 28 provides that TSL debts are not provable in bankruptcy (see section 82(3AB) of the Bankruptcy Act 1966).

Clause 29 - Notice to Commissioner

Clause 29 provides if a person incurs a TSL debt, the Secretary must give the Commissioner a notice specifying the amount of the debt incurred by the person. The Secretary may include in the notice any other details the Commissioner requests for the purpose of ensuring the Commissioner has the information needed to exercise powers or perform functions of the Commissioner under the Act.

Clause 30 - Simplified outline of this Division

Clause 30 provides a simplified outline of Division 3.

Clause 31 - Stage 1 - working out a former accumulated TSL debt

Subclause 31(1) provides that a person's former accumulated TSL debt, in relation to the person's accumulated TSL debt for a financial year, is worked out by multiplying the amount calculated using the method statement (set out in the table in the subclause) by the TSL debt indexation factor for 1 June in that financial year.

Subclause 31(2) provides that, for the purposes of clause 30, an assessment (or an amendment of an assessment) is taken to have been made on the day specified in the notice of assessment (or notice of amended assessment) as the date of issue of that notice.

Clause 32 - TSL debt indexation factor

Subclause 32(1) provides for the method to determine the TSL debt indexation factor.

Subclause 32(2) provides for how the TSL debt indexation factor is to be rounded.

Clause 33 - Index numbers

Subclause 33(1) provides for the meaning of index number in relation to trade support loans.

Subclause 33(2) provides that subject to subclause 33(3), if at any time before or after the commencement of the Act the Australian Statistician has published or publishes an index number in respect of a quarter and that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter, then the publication of the later index is disregarded for the purposes of this clause.

Subclause 33E(3) provides that if, at any time before or after the commencement of this Act, the Australian Statistician has changed or changes the reference base for the All Groups Consumer Price Index, then in applying this clause after the change took place or takes place, regard should be had only to index numbers published in terms of the new index reference period.

Clause 34 - Publishing TSL debt indexation factors

Clause 34 provides that the Commissioner must publish before 1 June in each financial year, the TSL debt indexation factor for that 1 June,

Clause 35 - Stage 2 - working out an accumulated TSL debt

Subclause 35(1) provides that a person's accumulated TSL debt, for a financial year is the sum of a person's former accumulated TSL debt and the TSL debts incurred, less any completion discount and any TSL debt repayments. The definition of completion discount, former accumulated TSL debt, TSL debt repayments and TSL debts incurred are described in subclause 35(1).

Subclause 35(2) provides that the person incurs the accumulated TSL debt on 1 June in the financial year.

Clause 36 - Rounding of amounts

Clause 36 provides for rounding of amounts of accumulated TSL debt. If, apart from clause 36, a person's accumulated TSL debt would be an amount consisting of a number of whole dollars and a number of cents, disregard the number of cents. If, apart from clause 36, a person's accumulated TSL debt would be an amount of less than one dollar, the person's accumulated debt is taken to be zero.

Clause 37 - Accumulated TSL debt discharges earlier debts

Subclause 37(1) provides that the accumulated TSL debt a person incurs on 1 June in a financial year discharges, or discharges the unpaid part of, any outstanding TSL debt that the person incurred during the previous calendar year and any accumulated TSL debt that the person incurred on the preceding 1 June.

Subclause 37(2) clarifies that subclause 37(1) does not affect the application of Division 2, or clauses 31 or 35.

Clause 38 - Accumulated TSL debt discharged by death

Subclause 38(1) provides that, when a person who has an accumulated TSL debt dies, the accumulated TSL debt is taken to have been discharged.

Subclause 38(2) provides that subclause 34(1) does not affect any compulsory TSL repayment amounts required to be paid in respect of the accumulated TSL debt, whether or not those amounts were assessed before the person's death. Compulsory TSL repayment amounts are those amounts that are required to be paid in respect of an accumulated TSL debt under clause 46.

Part 3.2 - Discharging debts

Clause 39- Simplified outline of this Part

Clause 35 provides a simplified outline of Part 3.2.

Clause 40 - Completion discount

Subclause 40(1) requires the Secretary to give to the Commissioner a notice specifying the amount of a completion discount for a person if a designated State/Territory training authority notifies the Secretary that a person has satisfied all requirements and their qualifying apprenticeship is considered successfully completed.

Subclause 40(2) provides that the completion discount is the amount equal to 20% of the total amount of instalments of trade support loan that were paid to the person in relation to TSL instalment periods that ended before the person ceased to be undertaking the relevant qualifying apprenticeship, and after the person undertook any earlier qualifying apprentice to which a completion discount was applied.

In the case that a person attempts more than one qualifying apprenticeship, the discount will be applied to the total of all instalments paid on any previous apprenticeships, so long as a completion discount had not been previously applied (in the case of a previously completed apprenticeship). A completion discount can only apply once to each loan instalment.

Subclause 40(3) permits the TSL rules to prescribe a State, a Territory or an authority of a State or Territory as a designated State/Territory training authority.

Clause 41- Application of completion discount

Clause 41 sets out that the amount of the completion discount is to be applied first, in discharge or reduction of a person's accumulated TSL debt, second, in discharge or reduction of any TSL debt of the person or if there is more than one such debt, in the order in which the debts were incurred.

Clause 42 - Refunding of payments

Clause 42 provides the Commonwealth must refund to the person an amount that exceeds the sum of the amount required to discharge the total TSL debt and the accumulated TSL debt that the person owes to the Commonwealth in relation to trade support loan and the total amount of the person's primary tax debts (within the meaning of Part IIB of the Taxation Administration Act 1953).

Clause 43 - Voluntary TSL repayments in respect of debts

Clause 43 allows a person to may make a voluntary payment, at any time, in respect of a TSL debt or an accumulated TSL debt. Such a payment must be made to the Commissioner for Taxation.

Clause 44 - Application of voluntary TSL repayments

Subclause 44(1) provides that if a person makes a direction regarding voluntary repayments in respect of a TSL debt or accumulated TSL debt, payment must be applied in accordance with that direction.

If the person has not given a direction, or the direction is inadequate in relation to subclause 44(1), subclause 44(2) provides that any money available will firstly be paid to discharge or reduce any accumulated TSL debt of the person and then to discharge or reduce any TSL debts of the person in the order in which the TSL debts were incurred.

Clause 45 - Refunding of payments

Clause 45 provides that if a person pays a voluntary repayment that exceeds the amount required to discharge the person's total TSL debt, accumulated TSL debt and the total amount of the person's primary tax debts (within the meaning of Part IIB of the Taxation Administration Act 1953), then the Commonwealth must refund to the person an amount equal to that excess.

Clause 46 - Liability to repay amounts

Subclause 46(1) provides that, if a person's repayment income for an income year is greater than the minimum repayment income for that income year, and the person had an accumulated TSL debt on 1 June immediately before an assessment is made of the person's income for that year, then the person is liable to pay to the Commonwealth the applicable percentage of repayment income, less HELP liability.

Subclauses 46(2) and (3) have the effect that a person is not liable under this clause to pay an amount for an income year if:

•

the amount worked out under subclause 42(1) is zero or less; or

•

under section 8 of the Medicare Levy Act 1986:

•

no Medicare levy is payable by the person on their taxable income for that year; or

•

the amount of the Medicare levy payable by the person on their taxable income for the income year is reduced.

Clause 47 - Repayable TSL debt for an income year

Subclause 47(1) provides that a person's repayable TSL debt for an income year is

(a)

the person's accumulated TSL debt referred to in subclause 46(1)(b); or

(b)

the difference between the person's accumulated TSL debt referred to in subclause 46(1)(b) and any or all of the following that apply:

•

the amount of a completion discount for the person;

•

one or more amounts that have been paid in reduction of that debt;

•

any amounts assessed under clause 48 to be payable in respect of that debt.

Subclause 47(2) clarifies that, a reference to an amount assessed to be payable is a reference to the increased amount or reduced amount if the amount assessed to be payable has been increased or reduced by an amendment of the relevant assessment.

Clause 48 - Commissioner may make assessments

Clause 48 allows the Commissioner to make an assessment of the person's accumulated TSL debt on the 1 June immediately before making the assessment. The Commissioner may also make an assessment of the amount that is required to be paid in respect of the person's repayable TSL debt under clause 46. In making this assessment, the Commissioner may use any information in his or her possession.

Clause 49 - Notification of notices of assessment of tax

Clause 49 provides that if the Commissioner for Taxation is required to serve a person notice of assessment in respect of that person's income of an income year, under section 174 of the Income Tax Assessment Act 1936, an assessment has been made by the Commissioner under paragraph 48(b) of a person's accumulated TSL debt and notice of the assessment has not already served on the person, notice of assessment may be served specifying the amounts concerned in the notice in paragraph 49(a).

Clause 50 - Commissioner may defer making assessments

Subclauses 50(1) to 50(3) provide a process by which a person may apply to the Commissioner of Taxation for deferral of the making of an assessment in respect of the person under clause 48.

Subclause 50(4) provides that the Commissioner may on application by a person under this clause defer making an assessment (in respect of the person under clause 48) if the Commissioner is of the opinion that if the assessment were made, payment of the assessed amount would either cause serious hardship to the person, or there are other special reasons that make it fair and reasonable to defer making the assessment.

Subclause 50(5) provides that the Commissioner may defer making the assessment for any period that he or she thinks appropriate. Subclause 50(6) provides that as soon as practicable after an application for deferral is made, the Commissioner must consider the matter to which the application relates and notify the applicant of the Commissioner's decision on the application.

Clause 51 - Commissioner may amend assessments

Subclauses 51(1) and 52(2) provide a process by which a person may apply to the Commissioner of Taxation, for an amendment of an assessment made under clause 48.

Subclause 51(3) provides that the Commissioner on application by a person under this clause may amend an assessment made under clause 48 so that the amount payable under the assessment is reduced or no amount is payable under the assessment if the Commissioner is of the opinion that payment of the assessed amount has caused (or would cause) serious hardship to the person or there are other special reasons that make it fair and reasonable to make the amendment.

Subclause 51(4) provides that, as soon as practicable after an application for amendment is made, the Commissioner must consider the matter to which the application relates and notify the applicant of the Commissioner's decision on the application.

Part 3.3 - Application of tax legislation

Clause 52 - Simplified outline of this Part

Clause 52 provides a simplified outline of Part 3.3.

Clause 53 - Return assessments, collection and recovery

Clause 53 provides, subject to Parts 3.2 and 3.4, that Part IV of the Income Tax Assessment Act 1936, Division 5 of the Income Tax Assessment Act 1997 and Part 4-15 in Schedule 1 to the Taxation Administration Act 1953 apply (so far as they are capable of application), in relation to a compulsory TSL repayment amount of a person as if it were income tax assessed to be payable by a taxpayer by an assessment made under Part IV of the Income Tax Assessment Act 1936.

Clause 54 - Charges and civil penalties for failing to meet obligations

Subclause 54(1) provides that Part 4-25 in Schedule 1 to the Taxation Administration Act 1953 has effect as if:

•

any compulsory TSL repayment amount of a person were income tax payable by the person in respect of the income year in respect of which the assessment of that debt was made; and

•

Chapter 3 (dealing with loan repayments), paragraph 8(1)(c) and Division 3 of Part 4.1 (powers in relation to tax file numbers) were income tax laws.

Subclause 54(2) ensures that subclause 54(1) does not have the effect of making a person liable to a penalty for any act or omission that happened before the commencement of this clause.

Clause 55 - Pay as you go (PAYG) withholding

Clause 55 provides that Part 2-5 (other than section 12-55 and Subdivisions 12-E, 12-F and 12-G) in Schedule 1 to the Taxation Administration Act 1953 applies (so far as it is capable of application) in relation to the collection of amounts of a person's compulsory TSL repayment amount of a person as if the compulsory TSL repayment amount were income tax.

Clause 56 - Pay as you go (PAYG) instalments

Clause 56 provides that Division 45 in Schedule 1 to the Taxation Administration Act 1953 applies (so far as it is capable of application) in relation to the collection of a person's compulsory TSL repayment amount as if the compulsory repayment amount were income tax.

Clause 57 - Extent of Commissioner's general administration of this Act

Clause 57 provides that the Commissioner of Taxation has general administration of Chapter 3 (dealing with loan repayments), paragraph 8(1)(c) , Division 3 of Part 4.1 (powers in relation to tax file numbers) and Part 4.2, so far as it relates to reviewable Commissioner decisions. The note in clause 57 provides that these provisions are taxation laws for the purposes of the Taxation Administration Act 1953.

Chapter 4 - Administration

Part 4.1-Information management

Clause 58 - Simplified outline of this Part

Clause 58 provides a simplified outline of Part 4.1.

Clause 59 - General power to obtain information

Clause 59 provides when the Secretary, in accordance with clause 62, may require a person to give them information or produce a document that is in the person's custody or under the person's control, in relation to a person's application for a trade support loan and in relation to the payability and rate of payment of a trade support loan.

Clause 60 - Power to obtain information from a person who owes a debt to the Commonwealth

Clause 60 provides when the Secretary, in accordance with clause 62, may require a person who owes an overpayment debt to the Commonwealth to give the Secretary information that is relevant to the person's financial situation, or produce to the Secretary a document that is the person's custody or under the person's control and is relevant to the person's financial situation, and to require a person to provide their new address details within 14 days after the change.

Clause 61 - Obtaining information about a person who owes a debt to the Commonwealth

Clause 61 provides that if the Secretary believes a person may have information or a document that:

•

would help them locate another person (the debtor) who owes an overpayment debt to the Commonwealth; or

•

is relevant to another person's financial situation,

then in accordance with clause 62, the Secretary may require that person to give the information or produce the document to the Secretary.

Clause 62 - Written notice

Subclause 62(1) provides that a written notice must be made for any of the requirements under clauses 59, 60 or 61.

Subclause 62(2) specifies how a notice is to be given and the requirements of the notice under subclause 62(1).

Subclause 62(3) provides that a notice is not invalid merely because it does not comply with the requirements in subclause 62(2)(b)(i) or (iv).

Subclause 62(4) provides that the period in which the person is to give the information or produce the document to the Secretary must not end before 14 days after the notice is given.

Subclause 62(5) provides that the notice may require the person to give the information by appearing before a specified officer to answer questions. Subclause 62(6) provides if the notice requires a person to appear before an officer, it must also specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.

Clause 63 - Offence

Subclause 63(1) provides it is an offence if a person refuses or fails to comply with a requirement under clauses 59, 60, 61 to give information or produce a document. The penalty for an offence under subclause 63(1) is imprisonment for 12 months.

Subclause 63(2) provides that subclause 63(1) does not apply if the person has a reasonable excuse.

The note in clause 63 provides that a defendant bears an evidential burden in relation to the mater in subclause 63(2) (see subsection 13.3(3) of the Criminal Code).

Clause 64 - Obligations not affected by State or Territory laws

Clause 64 provides that nothing in a State or Territory law operates to prevent a person from complying with a requirement made under this Act to give information or produce a document to the Secretary.

Clause 65 - Request for tax file number

Clause 65 provides the Secretary may request a person who wishes to make an application for trade support loan, to give them or a specified officer, or an officer of a specified class, a written statement of their tax file number. The Secretary cannot compel a person to provide a written statement of their tax file number. The note in this clause provides that a person cannot qualify for trade support loan if they do not provide their tax file number.

Clause 66 - Verification of tax file numbers

Subclause 66(1) provides the Secretary may provide to the Commissioner a tax file number they have been notified of for the purposes of subclause 8(1)(c), for the purpose of verifying that the number is the person's tax file number.

Subclause 66(2) provides if the Commissioner is satisfied the number provided is the person's tax file number, the Commissioner may give the Secretary a written notice informing the Secretary accordingly.

Clause 67 - When person with tax file number incorrectly notifies number

Subclause 67(1) states if the Commissioner is satisfied the tax file number that a person notified to the Secretary for the purposes of paragraph 8(1)(c):

•

has been cancelled or withdrawn since the notification was given; or

•

is wrong; and

•

the person has a tax file number

the Commissioner may give to the Secretary written notice of the incorrect notification and of the person's tax file number.

Subclause 67(2) provides that the number is taken to be the number that the person notified to the Secretary.

Clause 68 - When person without tax file number incorrectly notifies number

Clause 68 states if the Commissioner is satisfied the tax file number that a person notified to the Secretary for the purposes of paragraph 8(1)(c):

•

has been cancelled since the notification was given; or

•

is for any other reason not the person's tax file number; and

•

the Commissioner is not satisfied that the person has a tax file number

the Commissioner may write to the Secretary informing the Secretary accordingly.

The Commissioner must give a copy of this notice to the person concerned, together with a written statement of the reasons for the decision to give the notice. Decisions to give notice under subclause 68(1) are reviewable decisions (see section 202F of the Income Tax Assessment Act 1936).

Clause 69 - When tax file numbers are altered

Subclause 69(1) provides that if a Commissioner issues a person (who has notified a tax file number to the Secretary for the purposes of paragraph 8(1)(c)) a new tax file number in place of one that has been withdrawn, the Commissioner may give to the Secretary a written notice informing the Secretary accordingly.

Subclause 69(2) provides the new tax file number will be the number the person notified to the Secretary.

Clause 70 - When tax file numbers are cancelled

Clause 70 provides if a person who provided the Secretary their tax file number for the purposes of paragraph 8(1)(c) and the Commissioner cancels their tax file number, the Commissioner may give written notice to the Secretary informing them accordingly.

The Commissioner must give a copy of this notice to the person concerned, together with a written statement of the reasons for the decision to give the notice. Decisions to give notice under subclause 70(1) are reviewable decisions (see section 202F of the Income Tax Assessment Act 1936).

Clause 71 - Notice requiring information or statements

Clause 71 lists when the Secretary may, in accordance with clause 72, require a person to inform them of any event or change of circumstances that occurs or is likely to occur, and that causes or would be likely to cause:

•

the person to cease to be qualified for trade support loan; or

•

trade support loan to cease to be payable to the person.

Clause 71(2) lists the persons to whom the notice may be given.

Clause 72 - Written notice

Subclause 72(1) provides that a written notice must be given to the person whom a requirement is made under clause 71.

Subclause 72(2) specifies how a notice is to be given and the requirements of the notice under subclause 72(1).

Subclause 72(3) provides that a notice is not invalid merely because it does not comply with the requirements in subclause 72(2)(b)(i) or (iv).

Subclause 72(4) provides that the period specified for the purposes of subclause 72(2)(b)(ii) must not end earlier than 7 days after the day on which an event or change of circumstance covered by the notice occurs or the person first becomes aware that such an event or change of circumstance is likely to occur.

Clause 73 - Offence

Subclause 73(1) provides a person commits an offence if the person refuses or fails to comply with a notice under clause 71. The penalty for an offence under subclause 73(1) is imprisonment for 6 months.

Subclause 73(2) does not apply if the person has a reasonable excuse.

The note in clause 73 provides that a defendant bears an evidential burden in relation to the matter in subclause 73(2) (see subsection 13.3(3) of the Criminal Code).

Clause 74 - Use etc. of personal information

A large amount of personal information will likely be acquired through the operation of the Trade Support Loans Programme and Clause 74 provides for the obtaining and use of this information.

The meaning of personal information for the purposes of the Act is included in clause 5.

A person may obtain personal information for the purposes of the Act (subclause 74(1)).

A person may make a record, disclose or otherwise use personal information in the following circumstances:

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for the purposes of the Act; or

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with the expressed or implied authorisation of the person to whom the information relates.

Subclause 74(3) provides the Secretary or an officer may obtain, make a record of, disclose or otherwise use personal information if the Secretary reasonably believes that the obtaining, recording or disclosure of use that is proposed to be made of the information is reasonably necessary for the following purposes:

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research matters relevant to the Department;

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statistical analysis of matters relevant to the Department; or

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policy development.

Clause 75 - Officer's declaration

Clause 75 provides that an officer must, when required by the Secretary or the Commissioner to do so, make an oath or affirmation to protect information in accordance with Division 5. The Secretary and the Commissioner may determine in writing the form of the oath or affirmation they will require and the manner in which the oath or affirmation must be made.

Part 4.2 - Review of decisions

This part contains the provisions for review of the Secretary's and Commissioner's decisions. It is anticipated that there will be a very low risk of decisions made under the TSL Programme requiring review by the Administrative Appeals Tribunal (AAT). This is because it is envisaged that the number of decisions requiring review under the internal review process will be low, given the simple requirements for eligibility.

Clause 76 - Simplified outline of this Part

Clause 76 provides a simplified outline of Part 4.2.

Clause 77 - Reviewable decisions

Under subclause 77(1), a decision under clauses 50 or 51 is a reviewable Commissioner decision.

Under subclause 77(2), a decision under this Act that is not a reviewable Commissioner decision or referred to in section 202F of the Income Tax Assessment Act 1936 or a decision under clause 88 is a reviewable Secretary decision.

Subclause 77(3) provides that a decision that is a reviewable Commissioner decision or a reviewable Secretary decision is a reviewable decision.

Clause 78 - Reviewer of decisions

Subclause 78(1) provides that the reviewer of a reviewable Secretary decision is the Secretary or an authorised review officer.

Subclause 78(2) provides that the reviewer of a reviewable Commissioner decision is the Commissioner or a delegate of the Commissioner.

Clause 79 - Authorised review officers

Subclause 79(1) provides that the Secretary may, in writing, authorise an officer to perform duties as an authorised review officer for the purposes of Part 4.2.

Subclause 79(2) requires that where the decision was made by a delegate of the Secretary or the Commissioner, but is to be reviewed by an authorised review officer or a delegate of the Commissioner, the authorised review officer or delegate must be a person who was not involved in making the original decision, and must occupy a position that is senior to that occupied by any person involved in making the decision.

Clause 80 - Notice of reasons for decision

Clause 80 provides that a person who makes a reviewable decision, or a decision on review of a reasonable decision, must include reasons for the decision in the notice of the decision. The note in clause 80 provides that section 27A of the Administrative Appeals Tribunal Act 1975 requires notice of a decision and review rights to be given to persons whose interests are affected by the decision.

Clause 81 - Internal review

Clause 81 provides for internal review of reviewable decisions if the reviewer of a reviewable decision is satisfied there is sufficient reason to do so.

Under subclause 81(2), the reviewer may review the decision even if the person has not applied for review of the decision, and even if an application for review has been made to the AAT.

Subclause 81(3) provides that after reviewing the decision, the reviewer must affirm the decision, vary the decision, or set aside and substitute a new decision.

Subclause 81(4) provides that the reviewer's decision on review takes effect on the day specified in the decision on review, or if a day is not specified, on the day on which the decision on review is made.

Clause 82 - Notice to AAT Registrar

Clause 82 requires a reviewer to give the Registrar of the AAT written notice of their decision under subclause 81(3) if at the time of the reviewer's decision, the person has applied to the AAT for review of the decision.

Clause 83 - Application for review

Subclause 83(1) provides that a person whose interests are affected by a reviewable Secretary decision, may apply to the Secretary for review of the decision by written notice given to the Secretary within 28 days (or longer if the Secretary allows) after the day the person first received notice of the decision.

Subclause 83(2) provides that a person whose interests are affected by a reviewable Commissioner decision, may apply to the Commissioner for review of the decision by written notice given to the Commissioner within 28 days (or longer if the Commissioner allows) after the day the person first received notice of the decision.

Subclause 83(3) provides the person's notice must set out the reasons for the application.

Clause 84 - Withdrawal of application

Clause 84 provides that a person who has applied for a review of a decision may withdraw their application for review (either orally, in writing or in any manner approved by the Secretary for an application in relation to a reviewable Secretary decision or the Commissioner for an application in relation to a reviewable Commissioner decision), before it has been completed. If the application for review is withdrawn, then the application is taken to have never been made.

Clause 85 - Review of decisions following application under section 83

Under clause 85, where a person has applied for review of a decision under clause 83, the reviewer must review the decision, and then affirm, vary, or set aside and substitute a new decision. Section 27A of the Administrative Appeals Tribunal Act 1975 requires notice of a decision and review rights to be given to persons whose interests are affected by the decision. Section 80 of this Act requires reasons for the decision to be included.

Subclause 85(2) provides that the reviewer's decision (the decision on review) takes effect on the day specified in the decision on review, or if a day is not specified, on the day on which the decision on review was made.

The reviewer is taken for the purposes of Part 4.2, to have affirmed the decision if the reviewer does not give notice of a decision to the person within 45 days of receiving the person's application.

Clause 86 - Review by AAT

Clause 86 provides that applications may be made to the AAT for review of decisions of a reviewer under subclauses 81(3) or clause 85(1).

Clause 87 - Decision changed before AAT review completed

Clause 87 provides that where a reviewer has varied a decision or set aside a decision and a new decision substituted after an application for review has been made to the AAT but no determination has been made by the AAT in relation to this application, it is the varied or new decision that is reviewed by the AAT.

Clause 88 - Settlement of proceedings before the AAT

Subclause 88(1) provides that the Secretary may agree with other parties before the AAT that proceedings be settled in relation to recovery of an overpayment debt. This agreement must be in writing.

Subclause 88(2) provides that if the proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle, the application for review of the decision is taken to have been dismissed.

Part 4.3 - Overpayment debts

Clause 89 - Simplified outline of this Part

Clause 89 provides a simplified outline of Part 4.3.

Clause 90 - Overpayment debt

Subclause 90(1) provides that if a trade support loan payment is made to a person who was not entitled to obtain that benefit, this payment is an overpayment debt due to the Commonwealth. The person owes that overpayment debt to the Commonwealth and that overpayment debt arises when the person obtained the benefit of the payment.

Subclause 90(2) lists when a person is not entitled to obtain the benefit of a trade support loan payment.

Without limiting subclause 90(1), 90(3) provides that a person is taken not to have been entitled to obtain the benefit of so much of any payment made to the person for an instalment period in accordance with a determination under subclause 16(4) as exceeds the amount of the instalment that was payable to the person for that instalment period having regard to clause 24 (yearly rate).

Subclause 90(4) provides that if a payment is made to, or as directed or authorised by the person who was entitled to obtain the benefit of the payment, subclause 90(1) does not apply to any person who afterwards obtains the benefit of the payment unless that person obtained the benefit because of a mistake made by the first person in connection with the giving of the direction or authorisation.

Subclause 90(5) provides that subclause 90(1) applies in relation to a payment made to a person whether or not the payment was made under a determination that had effect at the time when the payment was made.

Subclause 90(6) provides that a reference to a payment of TSL includes a reference to part of a payment of TSL.

The purpose of clause 90 is to ensure there is a mechanism to recover payments that are incorrectly made and that cannot be recovered by the Commissioner under Chapter 3 of the Act.

Clause 91 - Overseas application

Clause 91 provides that clause 90 extends to acts, omissions, matters and things outside Australia, whether in a foreign country or not and all persons irrespective of nationality or citizenship.

Clause 92 - Recovery of overpayment debt-payment arrangement

Clause 92 provides that the Secretary may, on behalf of the Commonwealth, enter into a payment arrangement to recover an overpayment debt. The clause also provides:

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the person is to pay the overpayment debt as set out under the arrangement.

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the date the arrangement takes effect.

•

the Secretary may vary or terminate the arrangement as described in subclause 92(3).

Clause 93 - Recovery of overpayment debt-legal proceedings

Clause 93 provides that an overpayment debt is recoverable by the Commonwealth in a court of competent jurisdiction.

Clause 94 - Secretary may write off overpayment debt

Clause 94 provides that subject to subclause 94(2), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

Subclause 94(2) provides when the Secretary may decide to write off a debt under subclause 94(1).

Subclause 94(3) provides for the purpose of subclause 94(2)(a), when a debt is irrecoverable at law.

Subclause 94(4) provides when a decision under subclause 94(1) takes effect.

Subclause 94(5) provides that nothing in this clause prevents anything being done at any time to recover a debt that has been written off under this clause.

Clause 95 - Secretary's power to waive overpayment debt

Clause 95 provides that the Secretary may, on behalf of the Commonwealth, waive the right to recover some or all of an overpayment debt from a debtor in the circumstances described in 96 or 97.

The waiver takes effect on the date specified in the waiver. The note in subclause 95(2) provides if the Secretary waives the Commonwealth's right to recover all or part of a debt, this is a permanent bar to recovery of the debt or part of the debt-the debt or part of the debt effectively ceases to exist.

Clause 96 - Waiver of overpayment debt arising from error

Clause 96 provides that in relation to an overpayment debt, the Secretary must waive the right to recover the debt that is attributable to an administrative error made by:

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the Commonwealth, or

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an authority of the Commonwealth, or

•

an organisation that performs services for the Commonwealth.

if the debt is raised 6 weeks from whichever ends later:

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the period from the first payment that caused the debt,

•

if the debt arose because a person has complied with a notification obligation - the period from the end of the notification period

Clause 97 - Waiver of small overpayment debt

Clause 97 provides that the Secretary must waive the right to recover an overpayment debt if the debt is, or is likely to be, less than 200 dollars and it is not cost effective for the Commonwealth to take action to recover the debt.

Chapter 5 - Miscellaneous

Part 5.1 - Miscellaneous

Clause 98 - Simplified outline of this Part

Clause 98 provides a simplified outline of Part 4.4.

Clause 99 - Indexation of lifetime limit and yearly rate

Subclause 99(1) provides that the lifetime limit and a yearly rate is to be indexed on 1 July 2017 and each later 1 July (each such 1 July is an indexation day) accordance with this clause.

Subclause 99(2) provides the method to calculate the indexed amount for an amount that is to be indexed on an indexation day.

Subclauses 99(4) and 99(5) provides for the method to calculate the annual indexation factor.

Clause 100 - Application to under-18s

Clause 100 provides that the Act and a provision of a taxation law (within the meaning of the Income Tax Assessment Act 1997) to the extent to which it relates to this Act applies to a person under the age of 18 in the same way that it applies to a person over the age of 18.

Subclause 100(2) states that subclause 100(1) does not limit the application of other provisions of taxation law in relation to persons aged under 18.

This clause ensures that all the provisions of the Act apply to under 18 year olds in the same way that it does for over 18 year olds.

Clause 101 - Delegation by Secretary

Clause 101 provides the Secretary may in writing delegate their powers and functions under this Act to an officer. The term officer is defined in clause 5. In exercising powers or performing functions under a delegation, the delegate must comply with any written directions of the Secretary.

Some of the functions may be delegated to contracted service providers who may provide a range of other services such as receiving and processing applications for trade support loans as well as other Australian Apprenticeship initiatives. This is appropriate as these functions are of an administrative nature and require a certain level of expertise in understanding the Trade Support Loan Programme. Administrative guidelines will be developed which will provide advice about circumstances under which these delegations will be made.

Clause 102 - Use of computer programs to make decisions

Clause 102 provides the Secretary may arrange for computer programs under their control to be used for the purposes of any decision they may make under this Act. A decision made by the operation of a computer program is taken to be a decision made by the Secretary (subclause 102(2)). A decision made by the operation of a computer program under subclause 102(2), that the Secretary is to make by determination, then the Secretary is taken as having made a determination to that effect. If, because subclause 102(2), the Secretary is taken to have made a decision that the Secretary is to make by determination, the Secretary is taken to have made a determination to that effect.

Clause 103 - Annual report

Clause 103 provides that as soon as practicable after 30 June in each year, the Secretary must give to the Minister a written report on the administrative operation of this Act in relation to the financial year that ended on that 30 June. The report must be tabled in Parliament within 15 sitting days after the Minister has received the report.

Clause 104 - Appropriation

Clause 104 provides the following amounts are payable out of the Consolidated Revenue Fund, which is appropriated accordingly:

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instalment that are to be paid to a person under Division 4 of Part 2.2;

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any other amounts payable by the Commonwealth under this Act.

Clause 105 - TSL Priority List

Clause 105 requires the Minister to establish and maintain a list to be known as the TSL Priority List which specifies either (or both) the occupations and the qualifications leading to occupations for which, in the opinion of the Minister, skilled persons are a priority. The TSL Priority List is a legislative instrument in accordance with the Legislative Instruments Act 2003.

This TSL Priority List will have strict criteria and will reflect occupations that are seen to be priority occupations determined through labour market evidence and in consultation with industry. The National Skills Needs List (NSNL) is a nationally recognised list which identifies the national priority skills areas. The NSNL is widely used and recognised in the training sector and is publicly available.

Given the importance of the NSNL in determining priority skills areas, the TSL Priority List will substantially incorporate the NSNL. To this end, subclause 105(2)(a) provides a contrary intention for the purpose of displacing the operation of subsection 14(2) of the Legislative Instruments Act 2003 to allow the TSL Priority List to specify the occupations and qualifications identified in the NSNL as they exist from time to time.

Subclause 105(2)(b) allows the TSL Priority List to include a final date in respect of a specified occupation or qualification when that occupation or qualification is no longer specified by the TSL Priority List.

Subclause 105(3) ensures that if the TSL Priority List includes a final date for a specified occupation or qualification, then for the purposes of clause 8(2)(a)(ii) that occupation or qualification will be taken to be specified on the TSL Priority List only in relation to apprenticeships started before the final date. This provision will ensure that any person who qualified for trade support loan will not be disadvantaged if the occupation or qualification of their qualifying apprenticeship is no longer specified.

Subclause 105(4) allows the TSL Priority List to provide for matters of an application or transitional nature to ensure that any addition, removal or modification of specified occupations or qualifications can be implemented in a way that does not detrimentally affect a person's entitlement to trade support loan.

Subclause 105(5) requires that the TSL Priority List be published on the Department of Industry website and in any other way the Minister considers appropriate.

Clause 106 - Rules

Clause 106 provides the Minister may, by legislative instrument, make rules prescribing matters required or permitted by this Act to be prescribed by the rules or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The rules may be of a transitional nature, including prescribing any saving or application provisions, arising out of the changes to the rules or administration of trade support loan.