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A Bill for an Act to amend the Public Governance, Performance and Accountability Act 2013, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 13 Nov 2019
Introduced Senate 13 Nov 2019
Table of contents.

 

 

2019

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Public Governance, Performance and Accountability Amendment (Tax Transparency in Procurement and Grants) Bill 2019

 

No.      , 2019

 

(Senator Patrick)

 

 

 

A Bill for an Act to amend the Public Governance, Performance and Accountability Act 2013, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Part 1—Main amendments                                                                                         3

Public Governance, Performance and Accountability Act 2013                       3

Part 2—Other amendments                                                                                      12

Taxation Administration Act 1953                                                                         12

 

 


A Bill for an Act to amend the Public Governance, Performance and Accountability Act 2013, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Public Governance, Performance and Accountability Amendment (Tax Transparency in Procurement and Grants) Act 2019.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

Part 1Main amendments

Public Governance, Performance and Accountability Act 2013

1  Section 6

After:

It also requires the Finance Minister to publish monthly financial reports and table annual consolidated statements in the Parliament.

insert:

It also places requirements on the accountable authority of the entity for relevant procurements (if the entity is a CPR entity) and grants.

2  Section 8

Insert:

associate, in relation to a non‑Commonwealth entity, means any of the following:

                     (a)  if the entity is a body corporate—a related body corporate (within the meaning of the Corporations Act 2001) of the body corporate;

                     (b)  if the entity is a partnership—a partner in the partnership;

                     (c)  if the entity is an unincorporated association or body of persons—a member of the committee of management of the association or body;

                     (d)  if the entity is a trust—a trustee of the trust.

Commonwealth Grants Rules and Guidelines means the Commonwealth Grants Rules and Guidelines in force under section 105C.

Commonwealth Procurement Rules means the Commonwealth Procurement Rules in force under subsection 105B(1).

CPR entity: see subsection 49B(2).

grant:

                     (a)  in Subdivision C of Division 8 of Part 3‑2—see section 49F; and

                     (b)  otherwise—has its ordinary meaning.

grant applicant, in relation to a grant, means a non‑Commonwealth entity applying for the grant.

grantee means a non‑Commonwealth entity who receives a grant.

non‑Commonwealth entity means any of the following:

                     (a)  an individual;

                     (b)  a body corporate;

                     (c)  a partnership;

                     (d)  any other unincorporated association or body of persons;

                     (e)  a trust;

but does not include a Commonwealth company or a Commonwealth entity.

relevant procurement: see subsection 49B(1).

submission has the same meaning as in the Commonwealth Procurement Rules.

supplier means a non‑Commonwealth entity that makes a submission as part of relevant procurement by a CPR entity.

tax haven: see subsection 49A(1).

tax haven grantee: see subsection 49J(2).

tax haven supplier: see subsection 49E(2).

tax‑transparency information:

                     (a)  in relation to a supplier—see subsection 49C(1); and

                     (b)  in relation to a grant applicant—see subsection 49G(1).

3  Section 33 (after the paragraph relating to Division 7)

Insert:

Division 8 is about relevant procurements by CPR entities and grants.

4  Subsection 46(1) (note)

After “Note”, insert “1”.

5  At the end of subsection 46(1) (after the note)

Add:

Note 2:       A CPR entity must include information relating to arrangements entered into with tax haven suppliers as part of relevant procurement (see section 49E).

Note 3:       A Commonwealth entity must include information relating to grants awarded to tax haven grantees (see section 49J).

6  At the end of Part 2‑3

Add:

Division 8Relevant procurements by CPR entities and grants

Subdivision APreliminary

49A  Tax havens

             (1)  A tax haven is a country, or a part of a country, which is prescribed by the rules as a tax haven.

             (2)  Before prescribing a country, or a part of a country, as a tax haven, the Minister must:

                     (a)  consult with the Commissioner of Taxation; and

                     (b)  publish a notice:

                              (i)  setting out the country, or the part of the country, the Minister proposes to prescribe; and

                             (ii)  inviting any person to make, within a period specified in the notice, written submissions about the proposed prescription; and

                     (c)  have regard to submissions received within the specified period.

             (3)  If the Minister does not prescribe a country, or a part of a country, as a tax haven within 6 months after this section’s commencement, the Minister must publish on the Department’s website an explanation as to why no such prescription has occurred.

Subdivision BRelevant procurement by CPR entities

49B  Relevant procurement by CPR entities

             (1)  Procurement (within the meaning of the Commonwealth Procurement Rules) by a CPR entity is relevant procurement by the entity if:

                     (a)  in the case of procurement for construction services—the expected value of the construction services being procured is $7.5 million or more; or

                     (b)  in the case of procurement for any other goods or services—the expected value of the goods or services being procured is $4 million or more.

             (2)  A CPR entity is:

                     (a)  a non‑corporate Commonwealth entity; or

                     (b)  a corporate Commonwealth entity prescribed by the rules.

49C  Suppliers must provide tax‑transparency information

             (1)  As part of relevant procurement by a CPR entity, the accountable authority of the entity must require a supplier’s submission made in response to the procurement to be accompanied by the following information (tax‑transparency information):

                     (a)  whether the supplier or the supplier’s associates (if any) are domiciled in a tax haven;

                     (b)  if the supplier or the supplier’s associates are so domiciled—how the supplier or the supplier’s associates (if any) have complied, or are complying, with any applicable laws in Australia or elsewhere that relate to tax;

                     (c)  any other information prescribed by the rules.

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (2)  If a supplier’s submission in response to the procurement is not accompanied by tax‑transparency information, the accountable authority must not accept the submission.

49D  Matters to consider in accepting suppliers’ submissions

             (1)  In deciding whether to accept a submission by a supplier made in response to relevant procurement by a CPR entity, the accountable authority of the entity must consider the following:

                     (a)  whether the supplier or the supplier’s associates (if any) are domiciled in a tax haven;

                     (b)  if the supplier or the supplier’s associates are so domiciled—how the supplier or the supplier’s associates (if any) have complied, or are complying, with any applicable laws in Australia or elsewhere that relate to tax;

                     (c)  any other matter prescribed by the rules.

             (2)  Subsection (1) does not limit the matters the accountable authority may consider.

             (3)  In considering the matters mentioned in subsection (1), the accountable authority must:

                     (a)  have regard to the tax‑transparency information that accompanied the supplier’s submission; and

                     (b)  consult with the Commissioner of Taxation.

49E  Annual reports for CPR entities must include certain information about tax haven suppliers

             (1)  The accountable authority of a CPR entity must include in the annual report for the entity for a reporting period:

                     (a)  the number of arrangements entered into with tax haven suppliers as part of relevant procurement by the entity during the period; and

                     (b)  the value of each such arrangement.

             (2)  A supplier is a tax haven supplier if the supplier, or an associate of the supplier, is domiciled in a tax haven.

Subdivision CGrants

49F  Grant

             (1)  A grant is a provision of financial assistance by, or on behalf of, the Commonwealth:

                     (a)  under which relevant money or other CRF money is to be paid to a grantee; and

                     (b)  which is intended to help achieve the priorities and objectives of the Australian Government.

             (2)  Subsection (1) does not apply to financial assistance that is provided as part of an arrangement that is not taken to be a grant (within the meaning of the Commonwealth Grants Rules and Guidelines).

49G  Grant applicant must provide tax‑transparency information

             (1)  As part of the process by a Commonwealth entity to award a grant, the accountable authority of the entity must require a grant applicant to provide the following information (tax‑transparency information):

                     (a)  whether the applicant or the applicant’s associates (if any) are domiciled in a tax haven;

                     (b)  if the applicant or the applicant’s associates are so domiciled—how the applicant or the applicant’s associates (if any) have complied, or are complying, with any applicable laws in Australia or elsewhere that relate to tax;

                     (c)  any other information prescribed by the rules.

Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

             (2)  If the grant applicant does not provide the tax‑transparency information, the accountable authority must not award the grant to the applicant.

49H  Matters to consider in awarding grants

             (1)  In deciding whether to award a grant to a grant applicant, the accountable authority of a Commonwealth entity must consider the following:

                     (a)  whether the applicant or the applicant’s associates (if any) are domiciled in a tax haven;

                     (b)  if the applicant or the applicant’s associates are so domiciled—how the applicant or the applicant’s associates (if any) have complied, or are complying, with any applicable laws in Australia or elsewhere that relate to tax;

                     (c)  any other matter prescribed by the rules.

             (2)  Subsection (1) does not limit the matters the accountable authority may consider.

             (3)  In considering the matters mentioned in subsection (1), the accountable authority of the entity must:

                     (a)  have regard to the tax‑transparency information that accompanied the grant applicant’s application; and

                     (b)  consult with the Commissioner of Taxation.

49J  Annual reports for accountable authorities must include information about tax haven grantees

             (1)  If grants have been awarded that relate to a Commonwealth entity during a reporting period, the accountable authority of the entity must include in the annual report for the entity:

                     (a)  the number of those grants awarded to tax haven grantees during the period; and

                     (b)  the value of each grant.

             (2)  A grantee is a tax haven grantee if the grantee, or an associate of the grantee, is domiciled in a tax haven.

Subdivision DMiscellaneous

49K  Inconsistency with this Division

             (1)  A law of the Commonwealth has no effect to the extent of any inconsistency with this Division, but the law is taken to be consistent with this Division to the extent that the law is capable of operating concurrently with this Division.

             (2)  A law of the Commonwealth includes:

                     (a)  the Commonwealth Grants Rules and Guidelines; and

                     (b)  the Commonwealth Procurement Rules.

7  At the end of subsection 105B(1)

Add:

Note:          Subdivision B of Division 8 of Part 2‑3 sets out requirements relating to tax havens for CPR entities in relation to relevant procurement.

8  At the end of section 105C

Add:

Note:          Subdivision C of Division 8 of Part 2‑3 sets out requirements relating to tax havens in relation to grants.

9  Application provision

Procurements

(1)       Sections 49C and 49D of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), as inserted by this Part, apply in relation to a procurement that begins on or after this item commences.

Grants

(2)       Sections 49G and 49H of the PGPA Act, as inserted by this Part, apply in relation to a process to award a grant that begins on or after this item commences.

Annual reports

(3)       Sections 49E and 49J of the PGPA Act, as inserted by this Part, apply in relation to an annual report for a reporting period beginning after this item commences.

Part 2Other amendments

Taxation Administration Act 1953

10  Subsection 355‑65(8) in Schedule 1 (after table item 7)

Insert:

 

7A

the accountable authority of a CPR entity

is for the purpose of the accountable authority deciding, as part of relevant procurement by the entity, whether to accept a supplier’s submission.

7B

the accountable authority of a Commonwealth entity

is for the purpose of the accountable authority deciding, as part of the process of awarding a grant, whether to award a grant to a grant applicant.

11  At the end of section 355‑65 in Schedule 1

Add:

           (10)  An expression used in table items 7A and 7B in table 7 in subsection (8) that is also used in the Public Governance, Performance and Accountability Act 2013 has the same meaning as in that Act.

12  Application provision—Taxation Administration Act 1953

            The amendments of section 355‑65 in Schedule 1 to the Taxation Administration Act 1953 made by this Part apply in relation to records and disclosures of information made on or after this item’s commencement (whether the information was obtained before, on or after that commencement).