An Act to provide for assessment and payment of certain grants and benefits, and for related purposes
Part 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Product Grants and Benefits Administration Act 2000.
2 Commencement [see Note 1]
This Act commences on the day on which it receives the Royal Assent.
3 Object
The object of this Act is to provide a scheme for the administration of a number of grants and benefits that are administered by the Commissioner of Taxation.
3A Extension to external Territories
This Act, to the extent that it applies in relation to product stewardship (oil) benefits, extends to all the external Territories.
4 States and Territories are bound
This Act binds the Crown in right of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. However, it does not make the Crown liable to be prosecuted for an offence.
5 Definitions
In this Act, unless the contrary intention appears:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
amount includes a nil amount.
approved form has the meaning given by section 995‑1 of the Income Tax Assessment Act 1997.
assessment includes an assessment of a nil amount.
authorised officer means an APS employee who has been authorised by the Commissioner under section 59 for the purposes of the provision in which the expression occurs.
benefit means a grant that is covered by this Act that is known as a benefit.
claim period has the meaning given by section 12.
cleaner fuel has the same meaning as in the Energy Grants (Cleaner Fuels) Scheme Act 2004.
Commissioner means the Commissioner of Taxation.
Deputy Commissioner means a Deputy Commissioner of Taxation.
electronic signature means an entity’s unique identification in an electronic form that is approved by the Commissioner.
energy grants scheme fuel means on‑road alternative fuel within the meaning of the Energy Grants (Credits) Scheme Act 2003.
entitlement Act means an Act under which the entitlement to a grant or benefit arises. The entitlement Acts are listed in section 8.
entity has the meaning given by section 37 of the A New Tax System (Australian Business Number) Act 1999.
false statement means a statement (whether made orally, in a document or in any other way) that:
(a) is false or misleading in a material particular; or
(b) omits any matter or thing without which the statement is misleading in a material particular;
but does not include a statement made in a document produced under paragraph 42(2)(b) or (c).
general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.
goods includes a substance and a tangible thing.
grant means a grant that is covered by this Act that is known as a grant.
occupier, in relation to premises, includes a person present at the premises who is in apparent control of the premises.
overpayment debt means so much of an amount paid, or purportedly paid, to an entity by way of:
(a) a grant or benefit as represents an overpayment; or
(b) an amount that is repayable as mentioned in subsection 13(2) or (3) (which deals with advances).
premises includes the following:
(a) a structure, building, aircraft, vehicle or vessel;
(b) a place (whether enclosed or built on or not);
(c) a part of a thing referred to in paragraph (a) or (b).
scheme debt means:
(a) an overpayment debt; or
(b) an amount payable by way of a penalty under Part 8.
trustee includes an executor and an administrator.
you: if a provision of this Act or an entitlement Act uses the expression you, it applies to entities generally, unless its application is expressly limited.
Note: The expression you is not used in provisions that apply only to entities that are not individuals.
6 Operation of offence provisions
If a maximum penalty is specified:
(a) at the foot of a section of this Act (other than a section that is divided into subsections); or
(b) at the foot of a subsection of this Act;
then:
(c) a person who contravenes the section or subsection is guilty of an offence punishable, on conviction, by a penalty not exceeding the specified penalty; or
(d) the offence referred to in the section or subsection is punishable, on conviction, by a penalty not exceeding the specified penalty.
7 Commissioner has general administration of this Act
The Commissioner has the general administration of this Act.
Note: An effect of this provision is that the Taxation Administration Act 1953 applies to this Act as a taxation law. This means, for example, that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
Part 2—Grants and benefits covered by Act
8 Grants and benefits covered by Act
The following table sets out the grants and benefits that are covered by this Act and the Acts (the entitlement Acts) under which those grants and benefits are payable:
Table of grants and benefits covered by Act |
Item | Grant or benefit | Entitlement Act |
2 | product stewardship (oil) benefits | Product Stewardship (Oil) Act 2000 |
3 | energy grants | Energy Grants (Credits) Scheme Act 2003 |
4 | cleaner fuel grants | Energy Grants (Cleaner Fuels) Scheme Act 2004 |
Part 3—Registration for grants and benefits
9 Registration for entitlement to grants or benefits
(1) On or after the commencement of this section, you may apply for registration for entitlement to a specific grant or benefit. The application must, subject to subsection (1A), be in the approved form and include such information as is specified in the regulations.
Telephone signature not required
(1A) If the application is given by telephone, it need not contain a telephone signature (within the meaning of section 995‑1 of the Income Tax Assessment Act 1997).
Note: The definition of approved form in section 5 of this Act would otherwise have the effect that the requirement for a telephone signature, in subsection 388‑75(4) in Schedule 1 to the Taxation Administration Act 1953, would apply.
General requirements
(2) If you apply in accordance with subsection (1), the Commissioner must register you for entitlement to the grant or benefit if the Commissioner is satisfied that:
(a) you satisfy any specific requirements set out in this section in relation to registration for that grant or benefit; and
(b) you satisfy any prescribed conditions; and
(c) if paragraph (d) does not apply—you have an ABN; and
(d) if you do not have an ABN and are not entitled to have an ABN—you have provided evidence, of a kind determined by the Commissioner, of your identity and address.
Specific requirement for product stewardship (oil) benefits
(3A) The specific requirement in relation to registration for the product stewardship (oil) benefits is that the Commissioner is satisfied that you:
(a) except in relation to registration for entitlement only for product stewardship (oil) benefits under subsection 9(3) of the Product Stewardship (Oil) Act 2000—are licensed to manufacture excisable goods under Part IV of the Excise Act 1901; and
(b) except in relation to registration for entitlement only to product stewardship (oil) benefits under subsection 9(3) of the Product Stewardship (Oil) Act 2000—satisfy any regulations made under this paragraph in relation to:
(i) compliance with relevant Commonwealth, State or Territory legislation relating to recycling operations or enterprises; and
(ii) the signing of any prescribed Code of Practice relating to recycled oils; and
(iii) compliance with any such prescribed Code of Practice; and
(c) satisfy any prescribed conditions.
Specific requirement for energy grants
(4) The specific requirement in relation to registration for the energy grant is that you notify the Commissioner that you are purchasing or importing, or propose to purchase or import, energy grants scheme fuel into Australia for a particular use or uses that, when you become registered, will entitle you to the grant in respect of the fuel.
Specific requirement for cleaner fuel grants
(5) The specific requirement in relation to registration for the cleaner fuel grant is that you:
(a) are a licensed manufacturer (as defined in the Excise Act 1901) for goods of a kind including a cleaner fuel; or
(b) are a holder of a storage licence (as defined in the Excise Act 1901) for goods of a kind including a cleaner fuel; or
(c) are a person specified in a permission given under section 61C of the Excise Act 1901 for goods of a kind including a cleaner fuel; or
(d) are importing, or propose to import, cleaner fuel into Australia; or
(e) are a person to whom a permission has been granted under section 69 of the Customs Act 1901 for goods of a kind including a cleaner fuel; or
(f) are a person covered by paragraph (b) of the definition of licensed person in the Energy Grants (Cleaner Fuels) Scheme Act 2004 for a cleaner fuel.
10 Refusal to register
(1) If the Commissioner refuses your application for registration, the Commissioner must give you written notice of:
(a) the refusal; and
(b) the reasons for the refusal.
(2) If the Commissioner has not decided your application for registration within 28 days after your application is made, you may, at any time, give the Commissioner written notice that you wish to treat your application as having been refused.
(3) For the purposes of section 53, if you give notice under subsection (2), the Commissioner is taken to have refused your application for registration on the day on which the notice is given.
11 Cancellation of registration
(1) If:
(a) the Commissioner has registered you for entitlement to a grant or benefit; and
(b) you do not make a claim for that grant or benefit within any 13 month period beginning on or after the later of the day on which you are registered and 1 July 2000;
the Commissioner may cancel that registration.
(2) If:
(a) the Commissioner registers you for entitlement to a grant or benefit; and
(b) after doing so, the Commissioner becomes satisfied that:
(i) you did not, at the time you were registered, satisfy one or more of the requirements in section 9 for registration for entitlement to that grant or benefit; or
(ii) you have ceased to satisfy one or more of those requirements;
the Commissioner may cancel that registration with effect from the time it took place or the time you ceased to satisfy the one or more requirements, as the case requires.
(3) The Commissioner must cancel your registration if you ask the Commissioner to do so.
(4) This section does not prevent you applying for fresh registration.
(5) If the Commissioner cancels your registration, the Commissioner must give you written notice of the cancellation.
Part 4—Payment of grants and benefits
12 Claim periods
(1) You may, subject to any determination by the Commissioner under subsection (2), make a claim under section 15 for any period (the claim period) that is specified in the claim.
(2) The Commissioner may, in writing, determine any one or more of the matters set out in subsection (3) in relation to:
(a) claims for all grants or benefits; or
(b) claims for particular grants or benefits; or
(c) claims by particular kinds of entities; or
(d) any combination of the above.
(3) The matters are:
(a) the minimum period that may be covered by a claim;
(b) the maximum period that may be covered by a claim;
(c) the minimum amount of money in respect of which a claim may be made;
(d) the minimum volume or quantity of goods in respect of which a claim may be made;
(e) any other requirement to be complied with in making a claim.
13 Advances on account of grants or benefits
(1) The Commissioner may, on behalf of the Commonwealth, make an advance on account of a grant or benefit that may become payable.
(2) If:
(a) you receive an advance on account of a grant or benefit that may become payable; and
(b) the amount of the advance is greater than the amount of the grant or benefit;
you are liable to repay the amount of the excess to the Commonwealth.
(3) If:
(a) you receive an advance on account of a grant or benefit that may become payable; and
(b) you do not make a claim for payment of the grant or benefit within 28 days after the end of the claim period concerned;
you are liable to repay the amount of the advance to the Commonwealth.
(4) An amount that you are liable to repay under this section is due and payable:
(a) if subsection (2) applies—at the time that you make the claim for the grant or benefit in respect of which the advance was made; or
(b) if subsection (3) applies—at the end of the period of 28 days referred to in that subsection.
(5) The Commissioner must not make an advance to an entity unless the entity has requested the Commissioner to make the advance. The amount of the advance must not exceed the amount requested by the entity.
14 Guidelines for making advances
(1) The Commissioner may, by writing, formulate guidelines to be complied with by him or her in deciding whether to make advances under section 13.
(1A) Without limiting subsection (1), guidelines under that subsection may provide that the Commissioner is not to make any advances at all in respect of payments of grants or benefits described in one or more specified items, or all of the items, in the table in section 8.
(2) In deciding whether to make advances under section 13, the Commissioner must comply with any relevant guidelines under subsection (1).
15 Claims for grants or benefits
(1) Despite the provisions of Part 3 and the entitlement Acts, you are not entitled to a grant or benefit unless you make a claim for payment of the grant or benefit in respect of a claim period during which the entitlement (ignoring this subsection) arose.
(2) The claim:
(a) may relate to all the goods in respect of which you are entitled to a grant or benefit for the claim period in question; and
(b) must be in the approved form; and
(c) must include such information as is specified in the regulations; and
(d) must be signed by you, unless it is transmitted to the Commissioner in an electronic format approved by the Commissioner and contains your electronic signature; and
(da) if the claim is for payment of an energy grant in respect of an on‑road credit for on‑road alternative fuel—must be given to the Commissioner before the earlier of:
(i) 1 July 2011; and
(ii) the end of 3 years after the start of the claim period; and
(e) otherwise—must be given to the Commissioner before the end of 3 years after the start of the claim period.
(2A) Despite the provisions of Part 3 and the Energy Grants (Credits) Scheme Act 2003, you are not entitled to an energy grant for an on‑road credit for on‑road alternative fuel if you have already given the Commissioner a return under the Fuel Tax Act 2006 that includes a net fuel amount that takes into account a decreasing fuel tax adjustment that relates to the fuel.
(3) Section 9 does not, by implication, limit subsection (2) of this section.
(4) In this section:
decreasing fuel tax adjustment has the meaning given by section 110‑5 of the Fuel Tax Act 2006.
net fuel amount has the meaning given by section 110‑5 of the Fuel Tax Act 2006.
on‑road alternative fuel has the meaning given by section 4 of the Energy Grants (Credits) Scheme Act 2003.
on‑road credit means an on‑road credit under Part 3 of the Energy Grants (Credits) Scheme Act 2003.
15A Authority for third party to make claim under section 15
(1) You may apply in writing to the Commissioner for permission to authorise third parties to make claims under section 15 on your behalf.
(2) An application under subsection (1) must be in the approved form.
(3) If the Commissioner accepts your application:
(a) that acceptance may be subject to such terms and conditions (including any limitations on the kinds of third parties in respect of whom an authorisation may be given) as the Commissioner determines to be appropriate; and
(b) when informing you of that acceptance, the Commissioner must notify those terms and conditions to you.
(4) If the Commissioner rejects your application, the Commissioner must notify you of the rejection and specify the reasons why the application was rejected.
(5) If the Commissioner accepts your application, you may, subject to any terms or conditions to which the acceptance is subject, authorise in writing a third party or third parties:
(a) to make claims under section 15 on your behalf; and
(b) for the purposes of making any such claim—to attach your electronic signature to claims so made.
(6) If a third party makes, or purports to make, a claim on your behalf under such an authority, the claim is to be treated, for all purposes of this Act, as a claim made by you under section 15.
(7) You may, at any time, revoke in writing an authorisation of a third party given under subsection (5).
(8) If you revoke an authorisation:
(a) you must notify the Commissioner, in writing, of the fact of the revocation; and
(b) the revocation only has effect when that notification is received by the Commissioner.
16 Further information
(1) This section applies to you if you have made a claim for a grant or benefit.
(2) The Commissioner may, within 28 days after the claim is made, request you to give the Commissioner, within the period specified in the request, further information about the claim.
(3) The Commissioner may refuse to consider the claim until you give the Commissioner the information.
16A Obligation to notify Commissioner of payment etc. of drawback, refund, rebate or remission of customs or excise duty on certain fuel
(1) If:
(a) at any time before you claim entitlement to a cleaner fuel grant, you were paid or given any drawback, refund, rebate or remission of duty of customs, or duty of excise, on the cleaner fuel concerned; or
(b) at any time before you claim entitlement to such a cleaner fuel grant you applied for any such drawback, refund, rebate or remission and by the time you make the claim:
(i) you have not been paid or given the drawback, refund, rebate or remission; and
(ii) you have not withdrawn the application; and
(iii) you have not been advised that the application has been rejected;
you must, at the time you claim the entitlement, notify the Commissioner of the fact.
(2) If, at any time after you claim entitlement to a cleaner fuel grant, you are paid or given any drawback, refund, rebate or remission of duty of customs, or duty of excise, on the cleaner fuel concerned, you must, within 21 days after that time, notify the Commissioner of the fact.
Note: Refusal or failure to notify the Commissioner as required by this section is an offence under section 8C of the Taxation Administration Act 1953.
17 Assessment
(1) This section applies to you if you have made a claim for a grant or benefit in respect of a claim period.
(2) The Commissioner must make an assessment of the amount of the grant or benefit to which you are entitled in respect of the claim period.
Note: Under section 5, assessment includes a nil assessment.
18 Reliance by Commissioner on claim
(1) If you make a claim for a grant or benefit in respect of a claim period, the Commissioner may, for the purposes of making an assessment, accept (either in whole or in part):
(a) a statement in the claim; and
(b) any other statement otherwise made by you or on your behalf.
(2) In determining whether an assessment is correct, any determination, opinion or judgment of the Commissioner made, held or formed in connection with the consideration of an objection against the assessment is taken to have been made, held or formed when the assessment was made.
19 Commissioner must give you notice of an assessment
(1) Except where the assessment is that you are entitled to the full amount of the grant or benefit claimed, the Commissioner must give you notice of an assessment as soon as practicable after the assessment is made. However, failing to do so does not affect the validity of the assessment.
(2) The Commissioner may give you the notice electronically if you transmitted the relevant claim to the Commissioner in an electronic format.
(3) In all cases, the Commissioner may give you the notice in any other manner or form.
20 Amendment of assessment
(1) The Commissioner may at any time amend an assessment under this Part.
(2) An amended assessment is an assessment for all purposes of this Act.
(3) If, as a result of an amended assessment, you are liable to pay an amount to the Commissioner, the amount is taken to have become due and payable at the time that the original assessment was made.
21 Request for amended assessment
(1) You may request the Commissioner in the approved form to make an amended assessment.
(2) The Commissioner must comply with the request if it is made within:
(a) 2 years after the end of the claim period; or
(b) such further period as the Commissioner allows.
22 Production of assessment is conclusive evidence
If the Commissioner gives you a notice of assessment under this Part, the production of the notice is conclusive evidence:
(a) that the assessment was properly made; and
(b) except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment—that the amounts and particulars in the assessment are correct.
23 Payment of grants or benefits
(1) If you are entitled to a grant or benefit in respect of a claim period:
(a) the grant or benefit is a debt due to you by the Commissioner on behalf of the Commonwealth; and
(b) you may recover the grant or benefit by action in a court of competent jurisdiction.
(2) Grant or benefits are payable by the Commonwealth in the manner determined by the Commissioner.
24 Recovery by set‑off
If an entity is liable to pay a scheme debt, the scheme debt may be deducted from one or more grants or benefits that are payable to the entity, and if the scheme debt is so deducted, the grant or benefit is taken to have been paid in full to the entity.
24A Interest on underpaid grants or benefits
(1) Interest is payable by the Commissioner to a person in respect of an amount of grant or benefit that becomes payable to the person if:
(a) the amount relates to a grant or benefit for a claim period; and
(b) the amount is payable as a result of a decision to which this section applies (the review decision).
(2) The interest is to be calculated for the period (the interest period):
(a) starting on the day on which the original assessment in relation to the grant or benefit was made; and
(b) ending on the day on which the amount is paid or applied by the Commissioner.
(3) The following method statement shows how to work out the interest (which is calculated on a daily basis):
Calculating the interest payable
Step 1. Work out the amount that is determined by the review decision to be the amount of the grant or benefit payable in relation to the claim period.
Step 2. For each day in the interest period, work out the amount of the grant or benefit that had been paid or applied by the Commissioner on or before that day (reduced by any amounts repaid before that day by the person).
Step 3. For each day in the interest period, subtract the amount worked out in step 2 from the amount worked out in step 1. If the result is negative, it is taken to be nil.
Step 4. For each day in the interest period, multiply the amount worked out in step 3 by the base interest rate for the day (expressed as a daily rate).
Step 5. Add all of the amounts worked out under step 4.
(4) In this section:
base interest rate for a day has the same meaning as in section 8AAD of the Taxation Administration Act 1953.
decision to which this section applies means:
(a) a decision under Part IVC of the Taxation Administration Act 1953 upon an objection relating to a grant or benefit; or
(b) a decision of the Administrative Appeals Tribunal in relation to an objection mentioned in paragraph (a); or
(c) a decision of a court in relation to:
(i) an objection mentioned in paragraph (a); or
(ii) a decision of the kind mentioned in paragraph (b).
Part 5—Record‑keeping requirements etc.
25 No entitlement to grants or benefits unless record‑keeping requirements met
(1) Despite the provisions of Part 3 and the entitlement Acts:
(a) you are not entitled to a grant or benefit in respect of a particular claim period unless you comply with the pre‑claim record‑keeping requirements set out in section 26; and
(b) if you have made a claim for a grant or benefit in respect of a particular claim period—you are not entitled, and are taken never to have been entitled, to the grant or benefit in respect of that claim period unless you have complied with the post‑claim record‑keeping requirements set out in section 27.
(2) If:
(a) you make a claim for a grant or benefit in respect of a claim period; and
(b) you make a statement in the claim to the effect that you undertake to comply with the post‑claim record‑keeping requirements set out in section 27;
the Commissioner may, for the purposes of making an assessment, assume that you will comply with those requirements. However, if you do not comply with those requirements, the Commissioner may amend your assessment under section 20.
26 Pre‑claim record‑keeping requirements
(1) This section sets out the pre‑claim record‑keeping requirements that apply to you in relation to a grant or benefit in respect of a particular claim period.
(2) You must:
(a) keep records that enable you to substantiate your claim for the grant or benefit; and
(b) retain those records until you make the claim.
Note: Section 27 provides that you must continue to retain those records for 5 years after you make the claim.
(3) The records must be:
(a) in English; or
(b) readily accessible, and easily convertible into English.
(4) You are taken to have met the requirement set out in paragraph (2)(a) if you keep records of a kind, and in a manner, specified in a written determination made by the Commissioner.
Note: Sections 8L, 8Q and 8T of the Taxation Administration Act 1953 deal with keeping records incorrectly.
27 Post‑claim record‑keeping requirements
(1) This section sets out the post‑claim record‑keeping requirements that apply to you in relation to a grant or benefit in respect of a particular claim period.
(1A) If the claim was in relation to an energy grant, you must keep records that enable you to substantiate that you have not lost your entitlement to the grant because of the application of section 49 or 55 of the Energy Grants (Credits) Scheme Act 2003.
(1B) You are taken to have met the requirements set out in subsection (1A) if you keep records of a kind, and in a manner, specified in a written determination made by the Commissioner.
(1C) The records must be:
(a) in English; or
(b) readily accessible, and easily convertible into English.
(1D) You must retain the records for the period of 5 years after the claim was made.
(2) You must continue to retain, for the period of 5 years after the claim was made, the records that the pre‑claim record‑keeping requirements set out in section 26 required you to retain.
(3) If the Commissioner gives you a written notice telling you to produce records that subsection (2) required you to retain, you must comply with the notice.
(4) A notice under subsection (3) must give you 28 days or more to comply, starting on the day after the notice is given. The Commissioner may allow you more time to comply with the notice.
(5) Despite subsection (2), it is not necessary to continue to retain records:
(a) if the Commissioner tells you that you do not need to retain them; or
(b) for a company that has been finally dissolved.
(6) Despite section 8C of the Taxation Administration Act 1953, you do not commit an offence merely by not complying with a notice under subsection (3).
Note: Sections 8L, 8Q and 8T of the Taxation Administration Act 1953 deal with keeping records incorrectly.
27A Requirement to notify Commissioner about any disqualifying use etc. of energy grants scheme fuel
If:
(a) you make a claim for an energy grant; and
(b) after you make the claim, you:
(i) use any of the energy grants scheme fuel to which the claim relates for a use (the actual use) other than the particular use for which you purchased or imported the fuel into Australia, except where you would have been entitled to an energy grant of the same amount if you had purchased the fuel for the actual use; or
(ii) sell or otherwise dispose of any of the fuel; or
(iii) lose any of the fuel (whether because of accident, theft or any other reason);
you must notify the Commissioner in writing of the fact, within 90 days, or such longer period as the Commissioner allows, after:
(c) the use, sale or other disposal of the fuel takes place; or
(d) the loss of the fuel becomes known to you.
Note: Failure to notify the Commissioner is an offence under paragraph 8C(1)(d) of the Taxation Administration Act 1953.
27B Requirement to notify Commissioner about any disqualifying circumstances for cleaner fuel
If:
(a) you make a claim for a cleaner fuel grant in respect of a quantity of cleaner fuel; and
(b) after you make the claim, paragraph 7(1)(a), (b) or (d) of the Energy Grants (Cleaner Fuels) Scheme Act 2004 applies to you in relation to the fuel;
you must notify the Commissioner in writing of that fact, within 90 days, or such longer period as the Commissioner allows, after:
(c) if paragraph 7(1)(a) or (b) of that Act applies to you—the sale, or inclusion in the fuel blend, takes place; or
(d) if paragraph 7(1)(d) of that Act applies to you—you become aware that the regulations apply to you.
Note: Failure to notify the Commissioner is an offence under paragraph 8C(1)(d) of the Taxation Administration Act 1953.
28 Records that are lost or destroyed
(1) This section applies to you if:
(a) section 26 or 27 requires you to retain a particular record; and
(b) the record is lost or destroyed.
(2) If you have a complete copy of the record that is lost or destroyed, it is treated as the original from the time of the loss or destruction.
(3) If you do not have such a copy, but the Commissioner is satisfied that you took reasonable precautions to prevent the loss or destruction, your entitlement to a grant or benefit is not affected by your failing to retain or produce the original record.
(4) This section has effect despite anything in section 25, 26 or 27.
Part 6—Disqualification for fraud
29 Disqualification of claimant for fraud
Despite the provisions of Part 3 and the entitlement Acts, if:
(a) you make a false statement to a person who is exercising powers, or performing functions, under or in connection with this Act or an entitlement Act; and
(b) you do so knowing that, or reckless as to whether, the statement:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the statement is misleading in a material particular; and
(c) the amount of a grant or benefit that would have been payable to you in respect of a claim period if the statement was not false exceeds the amount of the grant or benefit properly payable to you in respect of that claim period;
you are disqualified, and are taken to have been disqualified, from receiving that grant or benefit in relation to the period:
(d) beginning at the start of that claim period; and
(e) ending at the end of 2 years or such shorter period as is determined by the Commissioner.
Note: Recklessly making a false statement can be an offence against section 8N of the Taxation Administration Act 1953.
30 Disqualification for aiding and abetting etc. fraud
Despite the provisions of Part 3 and the entitlement Acts, if:
(a) an entity makes a false statement to a person who is exercising powers, or performing functions, under or in connection with this Act or an entitlement Act; and
(b) the entity does so knowing that, or reckless as to whether, the statement:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the statement is misleading in a material particular; and
(c) the amount of a grant or benefit that would have been payable to the entity in respect of a claim period if the statement was not false exceeds the amount of the grant or benefit properly payable to the entity in respect of that claim period; and
(d) you:
(i) aided, abetted, counselled or procured the making of the statement by the entity; or
(ii) were in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the making of the statement by the entity;
you are disqualified, and are taken to have been disqualified, from receiving that grant or benefit in relation to the period:
(e) beginning at the start of that claim period; and
(f) ending at the end of 2 years or such shorter period as is determined by the Commissioner.
Note: Recklessly making a false statement can be an offence against section 8N of the Taxation Administration Act 1953.
31 Disqualification of body corporate—executive disqualified etc.
Despite the provisions of Part 3 and the entitlement Acts, a body corporate is disqualified, and is taken to have been disqualified, from receiving a grant or benefit in relation to a particular time if any of the following individuals is disqualified under section 29 or 30 from receiving that grant or benefit in relation to that time:
(a) a director of the body corporate;
(b) the secretary of the body corporate;
(c) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.
32 Disqualification of partnership—partner disqualified etc.
Despite the provisions of Part 3 and the entitlement Acts, a partnership is disqualified, and is taken to have been disqualified, from receiving a grant or benefit in relation to a particular time if any of the following entities is disqualified under section 29 or 30 from receiving that grant or benefit in relation to that time:
(a) a partner;
(b) an individual who:
(i) is an employee of the partnership; and
(ii) is concerned in, or takes part in, the management of the partnership;
(c) in a case where a partner is a body corporate:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.
33 Disqualification of trust—trustee disqualified etc.
Despite the provisions of Part 3 and the entitlement Acts, a trust is disqualified, and is taken to have been disqualified, from receiving a grant or benefit in relation to a particular time if any of the following entities is disqualified under section 29 or 30 from receiving that grant or benefit in relation to that time:
(a) a trustee;
(b) an individual who:
(i) is an employee of the trust; and
(ii) is concerned in, or takes part in, the management of the trust;
(c) in a case where a trustee is a body corporate:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.
Part 7—Contrived schemes etc.
34 Contrived schemes etc.
(1) If:
(a) one or more entities enter into, commence to carry out, or carry out a scheme; and
(b) it would be concluded that the entity, or any of the entities, who entered into, commenced to carry out, or carried out the scheme or any part of the scheme did so for the sole or dominant purpose of enabling a particular act or transaction to be taken into account in determining a grant or benefit entitlement of any entity (whether or not the entity, or any of the entities, who entered into, commenced to carry out, or carried out the scheme or any part of the scheme); and
(c) the scheme or part of the scheme has achieved, or apart from this section, would achieve, that purpose;
the Commissioner may determine that this Act or an entitlement Act has, and is taken always to have had, effect as if the act or transaction had never happened.
(2) A determination under subsection (1) has effect accordingly.
(3) In this section:
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
Part 8—General Interest Charge (GIC)
35 General interest charge on unpaid scheme debts
(1) For the purposes of this section, a designated scheme debt is:
(a) an overpayment debt; or
(b) an amount payable by way of a penalty under subsection 284‑75(1) or (4) in Schedule 1 to the Taxation Administration Act 1953.
(2) If an amount of a designated scheme debt that is payable by you remains unpaid after the day by which it must be paid, you are liable to pay the general interest charge (GIC) on the unpaid amount.
Note: The GIC is worked out under Part IIA of the Taxation Administration Act 1953.
(3) You are liable to pay the GIC for each day in the period that:
(a) started at the beginning of the day by which the designated scheme debt was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the designated scheme debt;
(ii) GIC on any of the designated scheme debt.
(4) This section does not apply to an overpayment debt that is attributable (in whole or in part) to an error made by the Commissioner, where the grant or benefit concerned was received in good faith.
Note: The overpayment debt is recoverable as an administrative overpayment under section 8AAZN of the Taxation Administration Act 1953.
(5) This section does not apply to an overpayment debt that is attributable (in whole or in part) to a change in regulations made for the purposes of working out the amount of a grant or benefit.
Part 9—Information‑gathering powers
42 Commissioner may obtain information and documents
(1) This section applies to a person if the Commissioner has reason to believe that the person:
(a) has information or a document that is relevant to the operation of this Act or an entitlement Act; or
(b) is capable of giving evidence which the Commissioner has reason to believe is relevant to the operation of this Act or an entitlement Act.
(2) The Commissioner may, by written notice given to the person, require the person:
(a) to give to the Commissioner, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the Commissioner, within the period and in the manner specified in the notice, any such documents; or
(c) to attend before the Commissioner at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
(2A) If the Commissioner is satisfied that the person has failed to comply with a requirement under subsection (2):
(a) the Commissioner may advise the person in writing that the Commissioner is so satisfied and that the consequences in paragraph (b) will apply; and
(b) if the Commissioner does so, the Commissioner must not make an assessment in relation to any existing or new claim by the person for an entitlement to a grant or benefit until the person complies with the requirement.
Note: Failing to comply with a notice can also be an offence against section 8C of the Taxation Administration Act 1953.
(3) The regulations may prescribe scales of expenses to be allowed to persons who are required to attend under this section.
43 Self‑incrimination
(1) An individual is not excused from giving information or evidence or producing a document under this Part on the ground that the information or evidence or the production of the document might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) giving the information or evidence or producing the document; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or evidence or producing the document;
is not admissible in evidence against the individual in criminal proceedings other than proceedings for an offence against section 8C, 8K or 8N of the Taxation Administration Act 1953, or Division 136 or 137 of the Criminal Code, being an offence that relates to this Part.
44 Copies of documents
The Commissioner may inspect a document produced under this Part and may make and retain copies of, or take and retain extracts from, such a document.
45 Commissioner may retain documents
(1) The Commissioner may take, and retain for as long as is necessary, possession of a document produced under this Part.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Commissioner to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the Commissioner must, at such times and places as the Commissioner thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
45A Commissioner may require claimant for grant or benefit to demonstrate record keeping system etc.
(1) This section applies to a person who has made a claim for entitlement to a grant or benefit.
(2) The Commissioner may, in writing, require the person to demonstrate to the Commissioner, at a specified time, one or more of the following:
(a) the method used to arrive at the particulars or estimates included in the claim;
(b) the operation of any record keeping or accounting system operated by, or on behalf of, the person and used to arrive at the particulars or estimates included in the claim;
(c) the operation of any process operated by, or on behalf of, the person to manufacture the goods to which the claim relates.
(3) The time specified under subsection (2) must be at least 21 days after the written requirement is given to the person.
(4) If the Commissioner is satisfied that the person has failed to comply with a requirement under subsection (2):
(a) the Commissioner may advise the person in writing that the Commissioner is so satisfied and that the consequences in paragraph (b) will apply; and
(b) if the Commissioner does so, the Commissioner must not make an assessment in relation to:
(i) the claim; or
(ii) any other existing claim, or any new claim, by the person for an entitlement to a grant or benefit;
until the person complies with the requirement.
Note: A refusal or failure to comply with the requirement is an offence against section 8C of the Taxation Administration Act 1953.
(5) The Commissioner may conduct such testing of the record keeping or accounting system mentioned in subsection (2) as is reasonably necessary to determine the accuracy of the system in arriving at those particulars or estimates.
(6) The Commissioner may conduct such testing of the manufacturing process mentioned in subsection (2) as is reasonably necessary to determine the accuracy of the goods’ description in the claim.
46 Commonwealth bound by this Part
(1) This Part binds the Crown in right of the Commonwealth. However, it does not make the Crown liable to be prosecuted for an offence.
(2) This section has effect in addition to section 4.
Part 11—Access to premises
48 Access to premises etc.
(1) This section applies to premises if an authorised officer has reason to believe that:
(a) there are on the premises any documents or goods that are relevant to the operation of this Act or an entitlement Act; or
(b) there is on the premises any other property that is relevant to the operation of this Act or an entitlement Act.
(2) The authorised officer:
(a) may at all reasonable times enter and remain on those premises; and
(b) is entitled to full and free access at all reasonable times to any such documents, goods or other property on those premises; and
(c) may inspect, examine, make copies of, or take extracts from, any such documents on those premises; and
(d) may inspect, examine, count, measure, weigh, gauge, test or analyse any such goods or other property on those premises and, to that end, take samples.
(3) An authorised officer is not entitled to enter or remain on any premises if, after having been requested by the occupier to produce his or her identity card, the officer fails to comply with that request.
(4) If an authorised officer enters, or proposes to enter, premises under this section, the occupier must provide the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
(5) An occupier who contravenes subsection (4) is guilty of an offence punishable on conviction by a fine not exceeding 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
49 Identity cards
(1) The Commissioner must issue an identity card to a person who is an authorised officer for the purposes of section 48.
(2) The identity card must be in the form prescribed by the regulations.
(3) The identity card must contain a recent photograph of the authorised officer.
(4) A person is guilty of an offence if:
(a) the person has been issued with an identity card under subsection (1); and
(b) the person ceases to be an authorised officer for the purposes of section 48; and
(c) the person does not immediately return the identity card to the Commissioner.
Maximum penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5) A person who is an authorised officer for the purposes of section 48 must carry the identity card at all times when exercising the powers or performing the functions of such an authorised officer.
50 Commonwealth bound by this Part
(1) This Part binds the Crown in right of the Commonwealth. However, it does not make the Crown liable to be prosecuted for an offence.
(2) This section has effect in addition to section 4.
Part 12—Special rules for certain entities
51 Treatment of partners
(1) This Act and the entitlement Acts apply to a partnership as if the partnership were a person, but it applies with the following changes.
(2) Obligations that are imposed under this Act on a partnership are imposed on each partner, but may be discharged by any of the partners.
(3) The partners are jointly and severally liable to pay any amount that is payable under this Act by the partnership.
(4) Any offence against this Act that is committed by a partnership is taken to have been committed by each partner who:
(a) aided, abetted, counselled or procured the relevant act or omission; or
(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
(5) For the purposes of this Act and the entitlement Acts, a change in the composition of a partnership does not affect the continuity of the partnership.
(6) In this section:
this Act includes the Taxation Administration Act 1953, to the extent to which that Act relates to this Act or an entitlement Act.
52 Treatment of unincorporated associations
(1) This Act and the entitlement Acts apply to an unincorporated association or body of persons as if the association or body were a person, but it applies with the following changes.
(2) Obligations that would be imposed under this Act on an unincorporated association or body of persons are imposed on each member of the committee of management of the association or body, but may be discharged by any of those members.
(3) Any offence against this Act that is committed by the association or body is taken to have been committed by each member of its committee of management who:
(a) aided, abetted, counselled or procured the relevant act or omission; or
(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
(4) In this section:
this Act includes the Taxation Administration Act 1953, to the extent to which that Act relates to this Act or an entitlement Act.
Part 13—Miscellaneous
53 Reviewable grant or benefit decisions
(1) If you are dissatisfied with a reviewable grant or benefit decision relating to you, you may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
(2) Each of the following decisions is a reviewable grant or benefit decision:
Reviewable grant or benefit decisions |
Item | Decision | Provision under which decision is made |
1 | refusing an application for registration | section 10 |
2 | cancelling registration | section 11 |
3 | making an assessment of the amount of a grant or benefit | section 17 |
4 | amending an assessment of the amount of a grant or benefit | section 20 |
54 Application of the Criminal Code
The Criminal Code applies to all offences against this Act.
55 Appropriation
Grants and benefits must be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.
56 Grants and benefits to be treated as subsidies for the purposes of section 15‑10 of the Income Tax Assessment Act 1997
A grant or benefit is taken to be a subsidy for the purposes of section 15‑10 of the Income Tax Assessment Act 1997.
57 Address for service
(1) An entity’s address for service for the purposes of this Act is:
(a) if the entity is registered in the Australian Business Register—the address shown in the Register under subsection 25(2) of the A New Tax System (Australian Business Number) Act 1999 as the entity’s address for service; or
(b) if the entity is not registered in that Register—the address last notified by the entity in a claim, application or any other document under this Act or an entitlement Act; or
(c) any other address that the Commissioner reasonably believes to be the entity’s address for service.
(2) If an entity on whom a notice or other document must be served:
(a) under this Act or an entitlement Act; or
(b) in proceedings for recovery of a scheme debt;
has notified the Commissioner of an Australian address for service, the Commissioner may serve the notice or document by post to that address.
(3) However, if an entity that has made claims electronically notifies the Commissioner of an address for effecting service by way of electronic transmission, the Commissioner may serve a notice under this Act or an entitlement Act on the entity by electronic transmission to that address.
58 Service of documents if entity absent from Australia or cannot be found
(1) This section applies if:
(a) a document needs to be served on an entity in respect of any proceeding to recover a scheme debt; and
(b) the Commissioner, after making reasonable inquiries, is satisfied that:
(i) the entity is absent from Australia and does not have any agent in Australia on whom the document can be served; or
(ii) the entity cannot be found.
(2) The Commissioner may, without the court’s leave, serve the document by posting it, or a sealed copy of it, in a letter addressed to the entity at any Australian address of the entity (including the entity’s Australian place of business or residence) that is last known to the Commissioner.
59 Authorised officers
The Commissioner may, by writing, authorise an APS employee to be an authorised officer for the purposes of a specified provision or provisions of this Act.
60 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
