Rex Patrick (SA, Independent) Share this | Hansard source

by leave—I move amendments (1) to (3) on sheet 1084 revised together:

(1) Schedule 1, page 3 (before line 5), before item 1, insert:

1A Before section 1

Insert:

Part 1—Preliminary

(2) Schedule 1, item 2, page 3 (lines 8 to 11), omit the item, substitute:

2 Before section 7

Insert:

Part 2—Coronavirus economic response payments

(3) Schedule 1, items 3 to 5, page 3 (line 12) to page 4 (line 10), omit the items, substitute:

3 At the end of the Act

Add:

Part 3—Jobmaker hiring credit payment

21 Definitions

In this Part:

baseline headcount has the meaning given by subsections 26(2) and (3).

baseline headcount increase amount has the meaning given by subsection 26(4).

baseline payroll amount has the meaning given by subsection 27(3).

eligible additional employee has the meaning given by section 25.

headcount increase has the meaning given by paragraph 26(1) (a).

headcount increase amount has the meaning given by paragraph 26(1) (b).

higher rate days has the meaning given by subsection 29(3).

jobmaker hiring credit payment means a jobmaker hiring credit payment payable to an entity under section 31.

Note: See section 28 for the amount of the jobmaker hiring credit payment.

jobmaker period has the meaning given by subsection 23(2).

jobmaker scheme means the scheme relating to the jobmaker hiring credit payment set out in Part 3.

lower rate days has the meaning given by subsection 29(4).

maximum payable days has the meaning given by subsection 29(5).

payroll increase has the meaning given by subsection 27(1).

total payroll amount has the meaning given by subsection 27(2).

Division 1—Simplified outline

22 Simplified outline

The jobmaker hiring credit payment is intended to improve the prospects of individuals getting employment in Australia and increase workforce participation in Australia by encouraging employers to hire additional workers.

The jobmaker scheme starts on 7 October 2020 and ends on 6 October 2022.

An employer that creates additional employment for individuals aged 16 to 35 years during the first 12 months of the jobmaker scheme can be entitled to a jobmaker hiring credit payment in respect of the individuals' first 12 months of employment with the employer.

The amount of a jobmaker hiring credit payment is calculated on the basis that an employer will receive $200 per week for each additional job that is filled by an individual aged 16 to 29 years at the time of starting the job, and $100 per week if the individual is aged 30 to 35 years.

The jobmaker scheme is administered by the Commissioner of Taxation.

The Commissioner pays the jobmaker hiring credit payment in respect of each 3-month jobmaker period, for an entitlement that arises in the period.

Some of the administrative arrangements for the scheme are set out in this Act.

Division 2—Entitlement

23 Employer ' s entitlement to jobmaker hiring credit payment

(1) An entity (the employer) is entitled to a jobmaker hiring credit payment for a period if:

(a) the period is a jobmaker period (see subsection (2)); and

(b) the employer qualifies for the jobmaker scheme for the period (see section 24); and

(c) the employer has one or more eligible additional employees for the period (see section 25); and

(d) the employer has a headcount increase for the period (see section 26); and

(e) the employer has a payroll increase for the period (see section 27); and

(f) the employer has notified the Commissioner in the approved form at or before the end of the period that the employer elects to participate in the jobmaker scheme; and

(g) the employer has given information about the entitlement for the period to the Commissioner in accordance with the reporting requirements determined by the Commissioner under subsection (3); and

(h) the employer is not entitled to a jobkeeper payment for an individual for a fortnight that starts in the period.

Note 1: Some provisions of this Act also affect whether an entity is entitled to a jobmaker hiring credit payment: see section 14 (about record keeping) and section 19 (about contrived schemes).

Note 2: The approved form may require further information: see paragraph 388-50(1) (c) in Schedule 1 to the Taxation Administration Act 1953.

Note 3: The Commissioner may defer the time for giving the approved form: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.

Meaning of jobmaker period

(2) Each of the following is a jobmaker period:

(a) the period of 3 months beginning on 7 October 2020;

(b) each subsequent 3-month period, ending with the 3-month period ending on 6 October 2022.

Commissioner determination

(3) The Commissioner may, by legislative instrument, determine reporting requirements for the purposes of paragraph (1) (g).

(4) Without limiting subsection (3), the reporting requirements that the Commissioner may determine include the following:

(a) the kinds of information that must be given to the Commissioner;

(b) the period within which the information must be given;

(c) the method by which the information must be given.

24 When an entity qualifies for the jobmaker scheme

(1) For the purposes of paragraph 23(1) (b), an entity qualifies for the jobmaker scheme for a period if:

(a) throughout so much of the period as occurs after the day the entity notifies the Commissioner that the entity elects to participate in the jobmaker scheme (as referred to in paragraph 23(1) (f)), the entity:

(i) carries on a business in Australia; or

(ii) is a non-profit body that pursues its objectives principally in Australia; or

(iii) is a deductible gift recipient that is, or operates, a public fund covered by item 9.1.1 or 9.1.2 of the table in subsection 30-80(1) of the Income Tax Assessment Act 1997 (international affairs deductible gift recipients); and

(b) throughout so much of the period as occurs after the day mentioned in paragraph (a), the entity:

(i) has an ABN; and

(ii) is registered in accordance with section 16-141, 16-142 or 16-147 in Schedule 1 to the Taxation Administration Act 1953; and

(c) at the time (the jobmaker claim time) the entity gives information to the Commissioner about the entitlement for the period (as referred to in paragraph 23(1) (g)), the entity has lodged all of the income tax returns and GST returns that the entity was required to lodge under a taxation law in the 2 years ending at the jobmaker claim time.

Exceptions

(2) However, an entity does not qualify for the jobmaker scheme for a period if:

(a) an amount of levy under the Major Bank Levy Act 2017 was imposed for any quarter ending on or before 30 September 2020 on:

(i) the entity; or

(ii) if the entity is a member of a consolidated group—another member of the group; or

(b) at any time in the period, the entity is:

(i) an Australian government agency; or

(ii) a local governing body; or

(iii) wholly owned by an entity covered by subparagraph (i) or (ii); or

(iv) a sovereign entity; or

(c) if the entity is a company—at or before the end of the period, a liquidator or provisional liquidator has been appointed in relation to the company; or

(d) if the entity is an individual—at or before the end of the period, a trustee in bankruptcy has been appointed to the individual's property.

25 Meaning of eligible additional employee

(1) An individual is an eligible additional employee of an entity for a period if:

(a) the individual is an employee of the entity at any time in the period; and

(b) the individual commenced employment with the entity on or after 7 October 2020 but no later than 6 October 2021; and

(c) at the time the individual commenced employment with the entity, the individual was either:

(i) aged 16 years or over but less than 30 years; or

(ii) aged 30 years or over but less than 36 years; and

(d) the individual commenced employment with the entity no more than 12 months before the start of the period; and

(e) for each whole week (consisting of a period of 7 consecutive days) that the individual is employed by the entity during the period, the individual works an average of at least 20 hours per week; and

(f) the individual satisfies the requirements in subsections (3) and (5); and

(g) the individual is not excluded from being an eligible additional employee of the entity for the period under subsection (7).

(2) For the purposes of paragraph (1) (e), the hours an individual works in a week are taken to include any hours of paid leave, or paid absence on public holidays, that the individual takes in the week.

Pre -employment requirement

(3) The requirement is that, for at least 28 consecutive days during the 84 days ending on the day before the individual commenced employment with the entity, the individual was receiving one of the following under the Social Security Act 1991:

(a) parenting payment;

(b) youth allowance (other than on the basis that the individual was undertaking full-time study or was a new apprentice);

(c) jobseeker payment.

(4) For the purposes of subsection (3), an individual is taken to have been receiving a payment or an allowance mentioned in that subsection on a day if the individual would have been receiving the payment or allowance on that day except that the person's payment or allowance rate under the Social Security Act 1991 was nil.

Notice requirements

(5) The requirements are that:

(a) the individual has given to the entity a notice in the approved form stating that the individual satisfies the requirements in paragraph (1) (c), subsection (3) and paragraph (b) of this subsection; and

(b) at the time the individual gives the entity the notice, the individual has not given any other entity a notice under this subsection (unless the notice given to the other entity has ceased to have effect under subsection (6)); and

(c) the notice has not ceased to have effect under subsection (6).

Note: If an overpayment results from an individual giving a notice to more than one entity, the individual may be jointly and severally liable to pay the overpayment and any general interest charge on the overpayment: see section 11.

(6) If an individual gives a notice to an entity under subsection (5), the notice ceases to have effect if the individual ceases to be employed by the entity.

Note: This subsection means that, if the individual recommences employment with the entity, the individual will need to give the entity another notice under subsection (5).

Exclusions

(7) An individual is excluded from being an eligible additional employee of an entity for a period if:

(a) the individual is:

(i) in the case of an entity that is a sole trader—a relative of the sole trader; or

(ii) in the case of an entity that is a partnership—a relative of a partner in the partnership or, if a partner in the partnership is a company (other than a widely-held company), a shareholder in or a director of the company, or a relative of a shareholder in or a director of the company; or

(iii) in the case of an entity that is a trust—a trustee or a beneficiary of the trust, or a relative of a trustee or a beneficiary of the trust; or

(iv) in the case of an entity that is a company (other than a widely-held company)—a shareholder in or a director of the company, or a relative of a shareholder in or a director of the company; or

(b) the individual was, at any time in the period of 6 months ending on 6 October 2020, engaged by the entity as a contractor or subcontractor to exercise powers, or to perform functions or duties, that are substantially similar to the power exercised, or the functions or duties performed, by the individual as an employee of the entity.

26 Headcount increase

(1) For the purposes of paragraph 23(1) (d), if the number of employees employed by an entity at the end of the last day of a period exceeds the entity's baseline headcount for the period:

(a) the entity has a headcount increase for the period; and

(b) the amount of the excess is the headcount increase amount for the period.

Baseline headcount

(2) Subject to subsection (3), an entity's baseline headcount for a period is the greater of one and the number of employees employed by the entity at the end of 30 September 2020.

Baseline headcount to be increased for certain periods

(3) However, if the period is referred to in column 1 of an item of the following table, the entity's baseline headcount for the period as determined under subsection (2) is increased by the greater of:

(a) the entity's baseline headcount increase amount (see subsection (4)) for the period (the corresponding period) referred to in column 2 of the table item; and

(b) unless the period is the period referred to in column 1 of item 1 of the table—the amount by which the entity's baseline headcount was increased under this subsection for the previous period.

Baseline headcount increase amount for corresponding period

(4) An entity's baseline headcount increase amount for a corresponding period is the lesser of:

(a) the entity's headcount increase amount for the corresponding period; and

(b) if the total counted days for the corresponding period falls short of the maximum payable days for the corresponding period—the amount (rounded up to the nearest whole number) worked out using the following formula:

Note 1: See subsection 29(2) for the meaning of total counted days.

Note 2: See subsection 29(5) for the meaning of maximum payable days.

Note 3: See paragraph (1) (b) of this section for the meaning of headcount increase amount.

27 Payroll increase

(1) For the purposes of paragraph 23(1) (e), if an entity's total payroll amount for a period exceeds the entity's baseline payroll amount for the period, the entity has a payroll increase for the period.

(2) An entity's total payroll amount for a period is the sum of the amounts covered by subsection (5) for each of the entity's employees for each pay cycle that ended in the period.

(3) An entity's baseline payroll amount for a period is the sum of the amounts covered by subsection (5) for each of the entity's employees for such number of consecutive pay cycles as is equal to the number of pay cycles that ended in the period.

(4) For the purposes of subsection (3), the consecutive pay cycles must:

(a) all end on or before 6 October 2020; and

(b) include the last pay cycle that ended on or before 6 October 2020.

(5) The amounts covered by this subsection are:

(a) amounts paid by the entity to the employee in the pay cycle by way of salary, wages, commission, bonus or allowances; and

(b) amounts withheld by the entity from payments made to the employee in the pay cycle under section 12-35 in Schedule 1 to the Taxation Administration Act 1953; and

(c) contributions made by the entity in the pay cycle to a superannuation fund or an RSA for the benefit of the employee, if the contributions are made under a salary sacrifice arrangement (within the meaning of the Superannuation Guarantee (Administration) Act 1992); and

(d) other amounts that, in the pay cycle, are applied or dealt with in any way if the employee agreed:

(i) for the amount to be so applied or dealt with; and

(ii) in return, for amounts covered by paragraph (a) for the employee for the pay cycle to be reduced (including to nil).

Division 3—Payment

28 Amount of the jobmaker hiring credit payment

The amount of an entity's jobmaker hiring credit payment for a period is the lesser of the following:

(a) the entity's headcount amount for the period (see section 29);

(b) the entity's payroll amount for the period (see section 30).

29 Calculation of headcount amount

(1) For the purposes of paragraph 28(a), an entity's headcount amount for a period is worked out as follows, subject to subsection (2):

Method statement

Step 1. Multiply the higher rate days for the period by $200, divide the result by 7 and round up to the nearest cent.

Step 2. Multiply the lower rate days for the period by $100, divide the result by 7 and round up to the nearest cent.

Step 3. Sum the results from steps 1 and 2.

Reduction based on maximum payable days

(2) However, if the sum of the higher rate days for the period and the lower rate days for the period (the total counted days for the period) exceeds the maximum payable days for the period, then the entity's headcount amount for the period is reduced by:

(a) first, reducing the number of lower rate days in step 2 of the method statement in subsection (1) until one of the following occurs:

(i) the total counted days for the period equals the maximum payable days for the period;

(ii) the lower rate days for the period are reduced to nil; and

(b) if subparagraph (a) (ii) applies—then, reducing the number of higher rate days in step 1 of the method statement for the period until the total counted days for the period equals the maximum payable days for the period.

Higher rate days

(3) The higher rate days for a period is worked out by adding together the number of days each eligible additional employee covered by subparagraph 25(1) (c) (i) was employed by the entity during the period.

Note: Subparagraph 25(1) (c) (i) covers an employee who, at the time of commencing employment with the entity, was aged 16 years or over but less than 30 years.

Lower rate days

(4) The lower rate days for a period is worked out by adding together the number of days each eligible additional employee covered by subparagraph 25(1) (c) (ii) was employed by the entity during the period.

Note: Subparagraph 25(1) (c) (ii) covers an employee who, at the time of commencing employment with the entity, was aged 30 years or over but less than 36 years.

Maximum payable days

(5) The maximum payable days for a period is worked out by multiplying the entity's headcount increase amount for the period by the number of days in the period.

Note: See paragraph 26(1) (b) for the meaning of headcount increase amount.

30 Calculation of payroll amount

(1) For the purposes of paragraph 28(b), an entity's payroll amount for a period is worked out by subtracting:

(a) the entity's baseline payroll amount for the period (see subsection 27(3)); from

(b) the entity's total payroll amount for the period (see subsection 27(2)).

31 Payment of jobmaker hiring credit payment

(1) If the Commissioner is satisfied that an entity is entitled to a jobmaker hiring credit payment for a period, the Commissioner must pay the entity that jobmaker hiring credit payment in accordance with this Division and this Act.

(2) The Commissioner may, for the purposes of determining whether the Commissioner is satisfied under subsection (1) in relation to an entity, accept, either in whole or in part, a statement made to the Commissioner by the entity under this Part.

Overpayment

(3) To avoid doubt, the fact that the Commissioner pays an entity a jobmaker hiring credit payment under this section does not mean the entity is entitled to that jobmaker hiring credit payment.

Note: If the entity was in fact not entitled to a jobmaker hiring credit payment paid under this section, the provisions about overpayments would apply: see sections 9, 10 and 11.

32 When the Commissioner must pay jobmaker hiring credit payments

The Commissioner must pay the jobmaker hiring credit payment for a period as soon as practicable after the entity gives information to the Commissioner about the entitlement for the period (as referred to in paragraph 23(1) (g)).

Note: For the method of paying the payment, see section 8.

Division 4—Administration

33 When payment constitutes notice

(1) This section applies if:

(a) an entity has given the Commissioner information about the entitlement for a period (as referred to in paragraph 23(1) (g)); and

(b) the Commissioner has paid an amount of jobmaker hiring credit payment to the entity for the period; and

(c) the amount paid by the Commissioner is consistent with the Commissioner:

(i) being satisfied that the entity is entitled to a jobmaker hiring credit payment for the period; and

(ii) having accepted, either in whole or in part, a statement made to the Commissioner by the entity under this Part.

(2) The Commissioner is taken to have given the entity notice, on the day the jobmaker hiring credit payment covered by paragraph (1) (b) is paid, that the Commissioner is satisfied the entity is entitled to a jobmaker hiring credit payment for the period referred to in paragraph (1) (a).

34 Notice of decision on entitlement

(1) This section applies if:

(a) an entity has given the Commissioner information about the entitlement for a period (as referred to in paragraph 23(1) (g)); and

(b) the amount paid by the Commissioner (including nil) is not consistent with the Commissioner:

(i) being satisfied that the entity is entitled to a jobmaker hiring credit payment for the period; or

(ii) having accepted, either in whole or in part, a statement made to the Commissioner by the entity under this Part.

(2) The Commissioner must give the entity notice in writing of a decision covered by subsection (3) as soon as practicable after making the decision.

Note: This Act provides for a review of certain decisions: see section 13.

(3) This subsection covers a decision of the Commissioner under section 31 that the entity:

(a) is entitled to a jobmaker hiring credit payment for a period; or

(b) is not entitled to a jobmaker hiring credit payment for a period.

35 Later legislation may limit jobmaker scheme

An entitlement to jobmaker hiring credit payment under this Part may be cancelled, revoked, terminated, varied or made subject to conditions by or under later legislation.

Part 4—Miscellaneous

36 Constitutional basis for this Act

Principal constitutional basis

(1) This Act relies on the legislative power that the Parliament has under the Constitution with respect to matters that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation.

Additional constitutional basis

(2) This Act also relies on all other legislative powers that the Parliament has under the Constitution relevant to a kind of Coronavirus economic response payment.

These amendments seek to undo what is becoming an awful trend in respect of legislation that is being brought into this chamber. As I said in my speech on the second reading yesterday, the government has put forward a bill to the parliament that basically has two substantive paragraphs. And those substantive paragraphs seek to grant a power for a minister to set up a scheme that involves the expenditure of somewhere up to $4 billion of taxpayers' money. All of the details of how that money will be spent, who will be in receipt of it and so forth will actually be contained in the rules generated by some faceless official somewhere in the government. The way this is supposed to work is we're supposed to put legislation on the table and have it be debated, contested, talked about openly and voted upon openly so that the people who we represent can hold us to account. But that is not what will happen in relation to this particular bill, because all of the details are in the rules.

The strange thing is: the rules are available. In fact, that's exactly what I've done with this amendment—I've taken the rules and put them into the bill, as should be the case. Part 1 section 1 of the Australian Constitution vests the power for legislating in the federal parliament, not into some official that sits in a back room inside a government building somewhere. There is an effect on the way in which the government is carrying out this particular approach to legislation, and I get it: during the COVID crisis for JobSeeker and JobKeeper it was necessary to grant a power and grant flexibility. Indeed, we granted a $40 billion contingency fund to the finance minister to deal with an emergency. The parliament was being very reasonable in what it did, but crisis time is over. There is no question that the parliament can now sit if there's a requirement to amend anything that the government is proposing in relation to this particular bill. By not including it in the bill, we have to seek to override the rules if we want to make an amendment. Indeed, assuming the bill passes, actually the government can do whatever they like. Sure, things are disallowable, but actually it can be a bit of challenge for the Senate to disallow things. The other thing is, if it's in the primary legislation and the government want to make some change, they can bring a bill forward to the Senate and, at that time, we can also include other measures. We can include other measures that might be as a result of the experience and representations of our constituents. But you can't do that when it's a regulation that is set for disallowance.

In effect, my amendment seeks to place this legislation outside of any constitutional doubt. It will mean that the rules will be part of the main legislation passed in this chamber. I indicated yesterday that I'm not willing to support this legislation on that basis alone, that it is bad practice and that someone has to make a stand. I note that Senator Hanson indicated that One Nation were not happy with the legislation. That actually leaves us in a position where the Labor Party can actually do what an opposition should do, and that is hold the government to account and hold them to a standard in relation to the inclusion of provisions in the primary legislation, rather than by way of delegated legislation. That is the job of the opposition. You, the opposition, actually now, without doubt, have the numbers to force the government to do this, if you want to. So I will be looking forward to your support in respect of this. I know there are many on your side that are in total agreement.

If you don't agree with me, go and have a look at the Scrutiny of Bills Committee report that shows how, by volume, half of the legislation in this country is now delegated legislation and how we've moved from 800 pieces of delegated legislation to 1,700 pieces of delegated legislation recently. This is a trend that must be reversed. It's not in accordance with the way in which the Constitution was set. Delegated legislation is for officials to deal with administrative arrangements in a bill. Delegated legislation is to deal with situations where you have an emergency. But there is an abuse that is now taking place. More often we are seeing legislation come into this place granting a power to a minister to do whatever they like. I am going to look as much to the Labor Party on this as to the government. The Labor Party needs to stand up and hold the government to account, to maintain standards and to make sure that we do the job that has been conferred upon us and that we are bound to do by way of the Constitution. So I urge the chamber to support this amendment.