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Authorised Version

Back to Work Act 2015 No. 3 of 2015

TABLE OF PROVISIONS Section Page

Part 1—Preliminary 1 1 Purpose 1 2 Commencement 1 3 Definitions 2

Part 2—Back to Work Scheme 3 4 Establishment of Back to Work Scheme 3 5 Eligibility criteria for payments under the Back to Work

Scheme 3

Part 3—Claiming Back to Work payments 4

Division 1—Making a claim 4 6 Making a claim 4

Division 2—Decision on claims 4 7 Commissioner to decide claims 4 8 Payment of claim 5 9 Power to correct decision 5 10 Notification of decision 5

Division 3—Objections and reviews 6 11 Objections 6 12 Determination of objection 6 13 Suspension of determination 7 14 Review 7 15 Request for further and better particulars 8 16 Grounds of review 8 17 Burden of proof on review 8 18 VCAT powers on review 9 19 Giving effect to decision on review 9

Part 4—Back to Work records 10 20 Requirement to keep proper records 10 21 Additional records 10 22 Inclusion of false or misleading information in records 11 23 Accessibility 11

Authorised by the Chief Parliamentary Counsel i

Section Page

24 Form of record—English language 11 25 Period of retention 12 26 Wilfully destroying records 12

Part 5—Administration and enforcement 13

Division 1—Administration 13 27 Administration 13 28 Authorised officers 13

Division 2—Investigations 13 29 Authorised investigations 13 30 Power of investigation 14 31 Powers of entry and inspection 14 32 Search warrant 16 33 Announcement before entry 17 34 Copy of warrant to be given to occupier 17 35 Protection against self-incrimination 18 36 Obstruction of authorised officer 18

Division 3—Repayments and penalties 19 37 Power to require repayment and impose penalty 19 38 Power to recover amount paid in error etc. 20 39 Recovery of amounts from third parties 21 40 Indemnification of third party 22

Division 4—Confidentiality 23 41 Definition 23 42 Prohibition on certain disclosures of information by authorised

persons 23 43 Permitted disclosures to particular persons 23 44 Permitted disclosures of a general nature 24 45 Permitted disclosure that may identify a particular person 24 46 Prohibition on secondary disclosure of information 25 47 Further restrictions on disclosure 25

Part 6—Miscellaneous 26 Division 1—Further offences and ancillary provisions for offences 26

48 False and misleading information in connection with claims 26 49 Criminal liability of officers of bodies corporate—accessorial

liability 27 50 Criminal liability of officers of bodies corporate—failure to

exercise due diligence 28 51 Time for commencing prosecution 30

Division 2—Miscellaneous 30 52 Evidence 30

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Authorised by the Chief Parliamentary Counsel

Section Page

53 Appropriation of Consolidated Fund 31 54 Back to Work Scheme reports 31 55 Regulations 32

Part 7—Amendment of Taxation Administration Act 1997 33 56 When must Commissioner make a refund? 33 57 Permitted disclosures to particular persons 33 58 Repeal of Part 33

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Endnotes 34 1 General information 34

iii


Authorised Version

Back to Work Act 2015†

No. 3 of 2015

[Assented to 25 March 2015]

The Parliament of Victoria enacts:

Part 1—Preliminary 1 Purpose

The purpose of this Act is to establish a Back to Work Scheme for the purpose of providing relief to employers in respect of the costs associated with hiring certain unemployed or retrenched workers.

2 Commencement This Act comes into operation on 1 July 2015.

Victoria

Authorised by the Chief Parliamentary Counsel 1

Part 1—Preliminary


3 Definitions In this Act—

authorised investigation—see section 29;

authorised officer means the Commissioner or a person referred to in section 28(2);

Back to Work payment means a payment under the Back to Work Scheme;

Back to Work record means a record required to be kept by a claimant by or under section 20 or 21;

Back to Work Scheme means the scheme established under section 4;

claim means a claim for a Back to Work payment;

claimant means a person who makes or has made a claim;

Commissioner means Commissioner of State Revenue under the Taxation Administration Act 1997;

eligibility criteria means the criteria determined under section 5;

eligible employee means an employee who is determined, or is in a class determined, in accordance with the eligibility criteria to be an eligible employee;

function includes a power, an authority and a duty;

perform a function includes exercise a power;

taxation law has the same meaning as in the Taxation Administration Act 1997.

2


Part 2—Back to Work Scheme


Part 2—Back to Work Scheme 4 Establishment of Back to Work Scheme

There is established by this Act a scheme for payments to employers for the purpose of providing relief in respect of the costs associated with hiring certain unemployed or retrenched workers.

5 Eligibility criteria for payments under the Back to Work Scheme

(1) The Minister is to determine the criteria governing the eligibility for payments under the Back to Work Scheme.

(2) The Minister must cause notice of the eligibility criteria to be published in the Government Gazette.

(3) A notice under subsection (2) is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.

(4) The eligibility criteria may impose a cap on the amount of any Back to Work payment and a cap on the number of payments that may be made during any specified period.

3


Part 3—Claiming Back to Work payments



Division 1—Making a claim 6 Making a claim (1) A person may make a claim to the Commissioner

for a Back to Work payment in relation to an eligible employee of the person.

(2) A claim—

(a) must be in the form approved by the Commissioner; and

(b) must contain the information required by the Commissioner about the claimant's eligibility for the payment; and

(c) must be made within the time (if any) provided for in the eligibility criteria; and

(d) must comply with any other requirements of the eligibility criteria.

Division 2—Decision on claims 7 Commissioner to decide claims (1) The Commissioner must decide whether a

claimant meets the eligibility criteria for a Back to Work payment and, if so, must determine the amount of the payment.

(2) The amount of the payment is to be determined in accordance with the eligibility criteria.

(3) If the Commissioner decides that a claimant meets the eligibility criteria for a Back to Work payment, the Commissioner may authorise the payment.

4




8 Payment of claim (1) A Back to Work payment is to be paid by

electronic funds transfer or in any other way the Commissioner thinks appropriate.

(2) A Back to Work payment is to be paid—

(a) to the claimant; or

(b) to another person nominated in writing by the claimant.

(3) If the claimant requests, the Commissioner may apply the amount of a Back to Work payment, or part of the amount, towards any liability of the claimant under a taxation law or another law under the general administration of the Commissioner.

9 Power to correct decision (1) If the Commissioner decides a claim and is later

satisfied (independently of an objection under this Act) that the decision is incorrect, the Commissioner may vary or reverse the decision.

(2) A decision cannot be varied or reversed under this section more than 5 years after it was made unless, at the time the decision was made, all the facts and circumstances affecting the eligibility of the claimant for a Back to Work payment were not fully and truly disclosed to the Commissioner.

10 Notification of decision (1) When the Commissioner decides a claim

(or decides to vary or reverse an earlier decision on a claim) the Commissioner must give the claimant notice of the decision.

(2) If the decision is to refuse a claim, or to vary or reverse an earlier decision on a claim, the Commissioner must state in the notice the reasons for the decision.

5




Division 3—Objections and reviews 11 Objections (1) A claimant who is dissatisfied with any of the

following decisions of the Commissioner may lodge a written objection with the Commissioner—

(a) a decision on the claim (including a decision to reverse or vary an earlier decision);

(b) a decision to require the claimant to pay a penalty imposed under section 37.

(2) The grounds for the objection must be stated fully and in detail, and must be in writing.

(3) On an objection, the objector has the burden of proving the objector's case.

(4) The objection must be lodged with the Commissioner within 60 days after the date of the notice of decision.

(5) If the Commissioner is satisfied that the claimant has a reasonable excuse for failing to lodge the objection within the 60-day period, the Commissioner may extend the time for lodging the objection.

(6) An objection is taken to have been lodged with the Commissioner when it is received by the Commissioner.

12 Determination of objection (1) The Commissioner must consider an objection

and either allow the objection in whole or in part or disallow the objection.

(2) The Commissioner may determine an objection that is subject to a right of review at any time before the hearing of the review proceedings commences.

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(3) The Commissioner must give notice in writing to the objector of the determination of the objection.

(4) The Commissioner must, in the notice, give the reasons for disallowing an objection or for allowing an objection in part only.

13 Suspension of determination (1) The Commissioner may suspend the

determination of an objection for any period during which the objector, or another person having information relevant to the objection, fails to provide information relevant to the objection that the Commissioner has requested under this Act.

(2) The Commissioner must give the objector written notice of the suspension and the suspension takes effect on service of the notice.

14 Review (1) If—

(a) an objector is dissatisfied with the Commissioner's determination of the objection; or

(b) 90 days (not including any period of suspension under section 13) have passed since the objection was received by the Commissioner and the Commissioner has not determined the objection—

the objector, in writing, may request the Commissioner to refer the matter to VCAT.

(2) The objector's request—

(a) in the circumstances referred to in subsection (1)(a), must be made within 60 days after the date of service on the objector of the notice of the Commissioner's determination of the objection; or

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(b) in the circumstances referred to in subsection (1)(b), may be made at any time after the 90-day period (not including any period of suspension under section 13).

(3) Subject to section 15, within 60 days after the request the Commissioner must refer the matter to VCAT for review.

15 Request for further and better particulars (1) Within 30 days after receiving a request to refer a

matter for review, the Commissioner may require the objector to give further and better particulars of the objection.

(2) If, within 30 days after giving the notice—

(a) particulars are given, the Commissioner is not bound to refer the matter for review until 30 days after the Commissioner has received full details of the objection; or

(b) particulars are not given, the Commissioner must not refer the matter for review.

16 Grounds of review On a review—

(a) the objector's case is limited to the grounds of the objection; and

(b) the Commissioner's case is limited to the grounds on which the objection was disallowed—

unless VCAT otherwise orders.

17 Burden of proof on review On a review, the objector has the burden of proving the objector's case.

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18 VCAT powers on review (1) VCAT must review a matter referred to it and,

subject to subsection (2), may confirm or vary the decision on the claim for a Back to Work payment.

(2) If the objector does not appear before VCAT, VCAT must confirm the decision. However, if good cause is shown within 6 weeks after the day on which the decision is confirmed, VCAT may re-open and review the matter.

19 Giving effect to decision on review (1) Within 60 days after the decision on review

becomes final, the Commissioner must take any action that is necessary to give effect to it.

(2) If no appeal to a court from a decision of VCAT on a review is instituted within 30 days after the day on which the decision is made, the decision is to be taken, for the purposes of this section, to have become final at the end of that period.

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Part 4—Back to Work records


Part 4—Back to Work records 20 Requirement to keep proper records

A claimant must keep, or cause to be kept, all records that are necessary to enable the claimant's eligibility for a Back to Work payment to be properly assessed.

Penalty: In the case of an individual, 10 penalty units;

In the case of a body corporate, 50 penalty units.

Note

Section 50 applies to an offence against this section.

21 Additional records (1) The Commissioner, by written notice given to a

claimant, may require the claimant to keep, or cause to be kept, additional records specified in the notice.

(2) A person must comply with a notice under subsection (1).



Note

Section 50 applies to an offence against subsection (2).

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22 Inclusion of false or misleading information in records

A claimant must not include in a Back to Work record any matter that is, to the claimant's knowledge, false or misleading in a material particular.



Note


23 Accessibility A claimant must keep a Back to Work record so that it is able to be readily produced to the Commissioner if the Commissioner requires its production.



Note


24 Form of record—English language (1) A claimant must keep a Back to Work record in

English or in a form that can be readily converted or translated into English.



Note

Section 49 applies to an offence against this subsection.

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(2) The Commissioner may recover from a claimant the costs reasonably incurred by the Commissioner in converting or translating a Back to Work record into English—

(a) in the Magistrates' Court irrespective of the amount; or

(b) in any other court of competent jurisdiction.

25 Period of retention (1) A claimant must keep a Back to Work record for

not less than 5 years after the date it was made.



Note


(2) Subsection (1) does not apply to a claimant if the Commissioner authorises them in writing to destroy the record before the end of the 5-year period.

26 Wilfully destroying records A person must not wilfully damage or destroy a Back to Work record.



Note


12


Part 5—Administration and enforcement



Division 1—Administration 27 Administration

The Commissioner has the general administration of this Act and the regulations.

Note

See section 69 of the Taxation Administration Act 1997 for the Commissioner's powers of delegation.

28 Authorised officers (1) The Commissioner is an authorised officer for the

purposes of this Act.

(2) Persons who are appointed as authorised officers under the Taxation Administration Act 1997 are authorised officers for the purposes of this Act.

Division 2—Investigations 29 Authorised investigations

An authorised investigation is an investigation to determine—

(a) whether a claim has been properly made; or

(b) whether an objection to a decision made under this Act should be allowed in whole or in part or disallowed; or

(c) whether a claimant to whom, or for whose benefit, a Back to Work payment has been made was eligible for the payment; or

(d) any other matter reasonably related to the administration or enforcement of this Act.

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30 Power of investigation (1) For the purposes of an authorised investigation,

the Commissioner may, by written notice, require a person—

(a) to give the Commissioner written information specified in the notice; or

(b) to attend at a specified time and place before the Commissioner or an authorised officer to answer questions relevant to the investigation; or

(c) to produce a document to the Commissioner at a specified time and place.

(2) The Commissioner may require information or evidence that is not given orally to be provided in the form of, or verified by, a statutory declaration.

(3) The Commissioner may require evidence that is given orally to be given on oath and for that purpose the Commissioner or an authorised officer may administer an oath.

(4) The person to whom the notice is given must comply with the notice within the period specified in the notice or any extended period allowed by the Commissioner.



Note

Section 50 applies to an offence against subsection (4).

31 Powers of entry and inspection (1) An authorised officer may, for the purposes of an

authorised investigation, exercise any of the following powers—

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(a) inspect premises and any thing found at the premises;

(b) require a person to produce a document relevant to the investigation for inspection and (if necessary) to operate a computer or other device in which information is stored to produce a document in understandable form;

(c) retain a document for inspection, to make a copy of it, or to take extracts from it;

(d) require a person to answer questions relevant to the investigation;

(e) require a person to give the authorised officer other assistance that may be reasonable in the circumstances to carry out the authorised investigation.

(2) An authorised officer may enter premises for the purposes of an authorised investigation—

(a) with the consent of the occupier; or

(b) on the authority of a warrant issued under section 32.

(3) An occupier who consents in writing to entry and inspection of premises under this section must be given a copy of the signed consent immediately.

(4) An authorised officer may not exercise any powers under this section if the authorised officer fails to produce, on request, the authorised officer's identity card issued under the Taxation Administration Act 1997 for inspection by the occupier of the premises.

(5) An authorised officer may be accompanied by any assistants the authorised officer reasonably requires to carry out an authorised investigation.

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32 Search warrant (1) An authorised officer may apply to a magistrate

for the issue of a search warrant in relation to particular premises if the authorised officer believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be relevant to the administration or execution of this Act.

(2) If a magistrate is satisfied by the evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, on the premises a particular thing that may be relevant to the administration or execution of this Act, the magistrate may issue a search warrant authorising an authorised officer named in the warrant and any assistants the authorised officer considers necessary—

(a) to enter the premises, or the part of premises, named or described in the warrant; and

(b) to search for and seize, or secure against interference, a thing named or described in the warrant; and

(c) if reasonably necessary for the purposes referred to in paragraph (b), to break open any receptacle in or on the premises.

(3) In addition to any other requirement, a search warrant issued under this section must state—

(a) the premises to be searched; and

(b) a description of the thing for which the search is to be made; and

(c) any conditions to which the warrant is subject; and

(d) whether entry is authorised to be made at any time or during stated hours; and

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(e) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

(4) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.

(5) The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.

33 Announcement before entry (1) Before executing a search warrant, the authorised

officer named in the warrant or a person assisting the authorised officer must announce that they are authorised by the warrant to enter the premises and give any person at the premises an opportunity to allow entry to the premises.

(2) The authorised officer or a person assisting the authorised officer need not comply with subsection (1) if the authorised officer believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

34 Copy of warrant to be given to occupier If the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed, the authorised officer must—

(a) identify themselves to that person by producing their identity card issued under the Taxation Administration Act 1997 for inspection by that person; and

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(b) give to that person a copy of the execution copy of the warrant.

35 Protection against self-incrimination (1) A person may refuse or fail to give information,

produce documents or answer questions that the person is required to give, produce or answer under this Division on the ground that giving the information, producing the documents or answering the questions would tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (1) does not excuse the person from giving information, producing documents or answering questions that the person is required under this Division to give, produce or answer on the ground that giving the information, producing the documents or answering the questions would tend to incriminate the person in respect of an offence against this Act.

(3) However, information given, documents produced or questions answered by a person as required under this Division are not admissible in evidence against the person in any proceeding in respect of an offence against this Act. Note

Subsection (3) does not extend to offences in other Acts or at common law, such as perjury.

36 Obstruction of authorised officer A person must not—

(a) prevent an authorised officer from performing a function under this Division; or

(b) hinder or obstruct an authorised officer in the performance of that function; or

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(c) without reasonable excuse, refuse or fail to comply with a requirement made by or to answer a question asked by an authorised officer under this Division.



Note


Division 3—Repayments and penalties 37 Power to require repayment and impose penalty (1) The Commissioner may, by written notice, require

a claimant to repay the whole amount, or part of the amount, of a Back to Work payment if—

(a) the amount was paid in error; or

(b) the Commissioner reverses the decision under which the amount was paid for any other reason.

(2) If, as a result of a claimant's dishonesty, an amount is paid by way of a Back to Work payment, the Commissioner may, by the notice in which repayment is required or a separate notice, impose a penalty not exceeding the amount the claimant is required to repay.

(3) If a claimant fails to make a repayment required under this section, the Commissioner may, by written notice, impose a penalty not exceeding the amount the claimant is required to repay.

(4) An amount or penalty under this section is payable by the date specified in the notice.

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(5) A claimant is liable to pay interest on any unpaid—

(a) amount that is required to be repaid to the Commissioner under subsection (1); or

(b) penalty imposed under subsection (2) or (3)—

calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under Division 1 of Part 5 of the Taxation Administration Act 1997.

(6) The Commissioner, in any circumstances the Commissioner considers appropriate, may remit interest payable by a claimant under this section by any amount.

38 Power to recover amount paid in error etc. (1) This section applies to the following amounts—

(a) an amount that a claimant is required to repay under section 37(1);

(b) an amount of a penalty imposed on a claimant under section 37(2) or (3).

(2) A claimant is liable to pay an amount to which this section applies to the Commissioner.

(3) The Commissioner may recover an amount to which this section applies as a debt due to the State.

(4) The Commissioner may enter into an arrangement (which may include provision for the payment of interest) for payment of a liability outstanding under this section by instalments.

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(5) The Commissioner may write off the whole or part of a liability outstanding under this section if satisfied that action, or further action, to recover the amount outstanding is impracticable or unwarranted.

39 Recovery of amounts from third parties (1) This section applies to the following amounts—

(a) an amount that a claimant is required to repay under section 37(1);

(b) an amount of a penalty imposed on a claimant under section 37(2) or (3);

(c) the amount of any judgment debt and costs in respect of an amount referred to in paragraph (a) or (b).

(2) The Commissioner may require any of the following persons instead of the claimant to pay an amount to which this section applies that remains unpaid—

(a) a person by whom any money is due or accruing or may become due to the claimant;

(b) a person who holds or may subsequently hold money for or on account of the claimant;

(c) a person who holds or may subsequently hold money on account of some other person for payment to the claimant;

(d) a person having authority from some other persons to pay money to the claimant.

(3) The Commissioner's requirement is to be made by notice in writing.

(4) A copy of the notice must be served on the claimant.

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(5) The amount of money required to be paid to the Commissioner is—

(a) if the amount of the money held or due or authorised to be paid does not exceed the amount payable by the claimant to the Commissioner, all the money; or

(b) if the amount of the money exceeds the amount payable, sufficient money to pay the amount payable.

(6) The money must be paid to the Commissioner on receipt of the notice, or when the money is held by the person, or after such period (if any) as may be specified by the Commissioner, whichever is the later.

(7) A person subject to a requirement of the Commissioner under this section must comply with the requirement.



Note


(8) If, after a person is given a notice under this section by the Commissioner, the whole or a part of the amount is paid by another person, the Commissioner must promptly notify the person to whom the notice is given of the payment and the notice is taken to be amended accordingly.

40 Indemnification of third party A person who makes a payment in accordance with section 39 is to be taken to be acting under the authority of the claimant and of all other persons concerned and is indemnified by this section in respect of the payment.

22




Division 4—Confidentiality 41 Definition

In this Division—

authorised person means—

(a) an authorised officer; or

(b) any other person engaged (whether as an employee, consultant, contractor or otherwise) in the administration of this Act.

42 Prohibition on certain disclosures of information by authorised persons

(1) A person who is or was an authorised person must not disclose any information obtained under, or in relation to the administration of, this Act, except as permitted by this Part.



Note


(2) For the purposes of the Freedom of Information Act 1982, information referred to in subsection (1) is information of a kind to which section 38 of that Act applies.

43 Permitted disclosures to particular persons A person who is or was an authorised person may disclose information obtained under, or in relation to the administration of, this Act—

(a) with the consent of the person to whom the information relates or at the request of a person acting on behalf of that person; or

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(b) in connection with the administration and enforcement of this Act, a taxation law or another law under the general administration of the Commissioner; or

(c) in accordance with a requirement imposed under an Act; or

(d) to an authorised recipient, being—

(i) the Minister; or

(ii) the Secretary to the Department of Treasury and Finance; or

(iii) the Victorian WorkCover Authority; or

(iv) a police officer of or above the rank of Inspector; or

(v) a person prescribed to be an authorised recipient for the purposes of this section.

44 Permitted disclosures of a general nature The Commissioner may disclose information obtained under, or in relation to the administration of, this Act, unless that information will or is likely to identify a particular person.

45 Permitted disclosure that may identify a particular person

Despite section 44, the Commissioner may disclose information obtained under, or in relation to the administration of, this Act that will or is likely to identify a particular person if that disclosure is permitted by this Act or is necessary for the administration of this Act.

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46 Prohibition on secondary disclosure of information (1) A person must not disclose any information

obtained from a person who is or was an authorised person in accordance with section 43 unless—

(a) the disclosure is made to enable the person to perform a function conferred on the person by law for the purpose of the enforcement or administration of a law or protecting the public revenue; and

(b) the Commissioner consents to the disclosure.



Note


(2) For the purposes of the Freedom of Information Act 1982, information referred to in subsection (1) is information of a kind to which section 38 of that Act applies.

47 Further restrictions on disclosure A person who is or was an authorised person is not required to disclose or produce in any Court any information obtained under or in relation to the administration of this Act except—

(a) if it is necessary to do so for the purposes of the administration of this Act; or

(b) if the requirement is made for the purposes of enabling a person who is specified for the time being to be an authorised recipient to perform a function conferred or imposed on the person by law.

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Part 6—Miscellaneous



Division 1—Further offences and ancillary provisions for offences

48 False and misleading information in connection with claims

(1) A person must not, in or in connection with a claim—

(a) give information that is, to the person's knowledge, false or misleading; or

(b) make a statement that is, to the person's knowledge, false or misleading; or

(c) produce a document that is, to the person's knowledge, false or misleading.



Note


(2) A person must not, in or in connection with a claim—

(a) omit information about any matter or thing, without which the claim is, to the person's knowledge, false or misleading in a material particular; or

(b) omit from a statement any matter or thing, without which the statement is, to the person's knowledge, false or misleading in a material particular; or

26




(c) fail to produce a document, without which the claim is, to the person's knowledge, false or misleading in a material particular.



Note


49 Criminal liability of officers of bodies corporate—accessorial liability

(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—

(a) authorised or permitted the commission of the offence by the body corporate; or

(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.

(2) For the purposes of subsection (1), the following provisions of this Act are specified—

(a) section 24(1);

(b) section 39(7).

(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

27




(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(5) In this section—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer in relation to a body corporate means—

(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958.

50 Criminal liability of officers of bodies corporate—failure to exercise due diligence

(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

(2) For the purposes of subsection (1), the following provisions of this Act are specified—

(a) section 20;

(b) section 21(2);

(c) section 22;

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(d) section 23;

(e) section 25(1);

(f) section 26;

(g) section 30(4);

(h) section 36;

(i) section 42(1);

(j) section 46(1);

(k) section 48(1) and (2).

(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—

(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and

(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and

(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and

(d) any other relevant matter.

(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

29




(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(6) In this section—

body corporate has the same meaning as in section 49;

officer in relation to a body corporate, has the same meaning as in section 49.

51 Time for commencing prosecution A prosecution for an offence against this Act may be commenced at any time within 3 years after the alleged commission of the offence.

Division 2—Miscellaneous 52 Evidence (1) A certificate signed by the Commissioner stating

that a Back to Work payment was paid to a person named in the certificate on a specified date is admissible in legal proceedings as evidence of the payment.

(2) A copy of a notice issued by the Commissioner imposing a penalty under this Act is admissible in legal proceedings as evidence of the imposition of the penalty.

(3) A copy of a notice issued by the Commissioner requiring the payment or repayment of a specified amount is admissible in legal proceedings as evidence—

(a) that the requirement was made; and

(b) that the amount specified in the notice was outstanding at the date of the notice.

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53 Appropriation of Consolidated Fund All Back to Work payments are to be paid from the Consolidated Fund which is appropriated by this section to the necessary extent.

54 Back to Work Scheme reports (1) At least once every 3 months the Commissioner

must publish on the Commissioner's website a report of the operation of the Back to Work Scheme.

(2) The report must contain the following information in relation to the period covered by it—

(a) the total amount paid under the Scheme;

(b) the total number of Back to Work payments made;

(c) the number of Back to Work payments made in each postcode area;

(d) if Back to Work payments were made according to different eligibility criteria, the number of Back to Work payments made according to each of those criteria;

(e) the name of any claimant to whom, or for whose benefit, Back to Work payments in respect of more than 100 eligible employees were made.

(3) For the purposes of subsection (2)(c), the postcode area is the postcode of the area in which an eligible employee is primarily carrying out their employment.

(4) Despite meeting the eligibility criteria for a claim, a claimant is not eligible for a Back to Work payment unless the claimant consents to the claimant's name being published in accordance with subsection (2)(e) if payments are made in respect of more than 100 eligible employees,

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whether in relation to that claim or any future claim.

55 Regulations (1) The Governor in Council may make regulations

for or with respect to any matter or thing required or permitted by this Act to be prescribed or that is necessary to be prescribed to give effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.

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Part 7—Amendment of Taxation Administration Act 1997


Part 7—Amendment of Taxation Administration Act 1997

56 When must Commissioner make a refund? After section 20(2) of the Taxation Administration Act 1997 insert—

"(3) Subsection (1)(d)(i) does not apply in respect of a liability arising under the Back to Work Act 2015.".

57 Permitted disclosures to particular persons After section 92(1)(b)(i) of the Taxation Administration Act 1997 insert—

"(ia) the Back to Work Act 2015; or".

58 Repeal of Part This Part is repealed on 1 July 2016.

Note

The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes


Endnotes 1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech—

Legislative Assembly: 11 February 2015

Legislative Council: 12 February 2015

The long title for the Bill for this Act was "A Bill for an Act to establish a Back to Work Scheme for the purpose of providing relief to employers in respect of the costs associated with hiring certain unemployed or retrenched workers and to make consequential amendments to the Taxation Administration Act 1997 and for other purposes."

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