Explanatory Memorandum
(Circulated by authority of the Assistant Minister for Competition, Charities and Treasury, the Hon Dr Andrew Leigh MP)Chapter 2: Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Commonwealth Entities (Payment Surcharges) Bill 2024;
Commonwealth Entities (Payment Surcharges) Tax (Imposition) Bill 2024;
Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Bill 2024
Overview
2.1 These Bills are 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.
2.2 The Commonwealth Entities (Payments Surcharges) Bill 2024, Commonwealth Entities (Payment Surcharges) Tax (Imposition) Bill 2024, and Commonwealth Entities (Payment Surcharges) (Consequential Provisions and Other Matters) Bill 2024 introduce new legislation, which together will formalise longstanding Commonwealth practice by providing express legislative authority for Commonwealth entities to continue to charge and collect payment surcharges where the entity has the legislative authority to collect a payment.
Human rights implications
2.3 The Consequential and Other Matters Bill engages the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Article 14 of the ICCPR provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
2.4 The Consequential and Other Matters Bill amends Schedule 2 to the ADJR Act to provide that a decision by a Commonwealth entity to charge, collect or refund a surcharge, forms part of a class of decisions that are not decisions for which a statement of reasons may be obtained under section 13 of the ADJR Act. This may limit a person's right to procedural fairness in seeking review of a decision under the ADJR Act.
2.5 The requirement for Commonwealth entities to provide a statement of reasons on request whenever a payment surcharge is charged and collected or refunded would result in a significant, disproportionate and unjustifiable administrative burden given the large number of surcharge payments charged across Commonwealth entities, and the typically small amount of each surcharge.
2.6 Additionally, a Commonwealth entity must take reasonable steps to reflect the whole-of-Government surcharging policy when deciding to charge, collect or refund a payment surcharge, therefore there is limited discretion for Commonwealth entities when deciding to impose a surcharge in relation to individual cases.
2.7 Neither the Commonwealth Entities (Payments Surcharges) Bill 2024 or the Commonwealth Entities (Payment Surcharges) Tax (Imposition) Bill 2024 engage human rights.
Conclusion
2.8 These Bills are compatible with human rights and freedoms.